While “attorneys' fees are not usually an element of compensation for damages,” the theory of independent tort liability states that the plaintiff can recover attorneys' fees when the natural and immediate consequence of a criminal act by the defendant was the plaintiff's participation in litigation with a third party. So, in New Jersey, Saffer is perhaps an acknowledgment that the state simply treats lawyers differently in general. To reach the decision that a cause of action for legal negligence files an appeal for a transfer of fees, the Saffer court studied other jurisdictions. Ohio adheres to what is called the “American Rule”, which states that the prevailing party in a lawsuit can recover its attorneys' fees only if allowed by law or a contract between the parties, or if the party does not prevail acted in bad faith.
The court held that there is a general rule that allows an attorney who provided negligent services to collect their reasonable fees minus the damages suffered by the client. Indeed, in New Jersey, lawyers have traditionally been treated differently from other professionals. Time and again, New Jersey courts have rejected Saffer's request to transfer fees to other similar lawsuits, but not because of legal negligence (or a lawyer's breach of trust). Therefore, at least in districts that recognize the exception, attorneys' fees are still available as compensation for non-compliance with a settlement agreement, even if the settlement agreement does not provide for them.
Whether attorneys' fees incurred in a lawsuit can be recovered, in addition to standard monetary damages, is a common question that clients have when they are required to sue others to assert their rights and obtain compensation for their damages. However, because the exception has been rejected for some reasons that call into question its legitimacy, it's a good idea to explicitly include attorneys' fee provisions in your settlement agreements. In a legal malpractice action, in which the client seeks underlying compensation through a second, more difficult and costly action, the New Jersey Supreme Court seems to have understood the practicality that a client who is suing his lawyer, at least in part, must be placed, to the extent possible, in the position he would have obtained if the underlying lawyer had not acted negligently. While much of the New Jersey Supreme Court's opinion concerns the procedural interaction between the arbitration of fee disputes and a separate legal malpractice proceeding, the rest of the opinion is based directly on the FJD's request to pay the fees of a lawyer specializing in legal malpractice. In addition, the exception can facilitate conciliation because it eliminates attorneys' fees as a bargaining chip and a potential obstacle to reaching an agreement.
Therefore, in New Jersey, when it comes to lawyers' negligence actions, the American rule has been rejected (with the exception of the undue influence of the executor or the trustee). Looking at Saffer's comment, it seems like Saffer doesn't make much sense, but New Jersey lawyers are impressed with him.
