Certificate of Merit
When suing a design professional for negligence, the plaintiff's attorney must complete a requirement that does not apply when suing other defendants. The attorney must file a Certificate of Merit in which s/he declares, under penalty of perjury, that:
A design professional1 in the same discipline was consulted and, on the basis of that consultation, the attorney believes there is a reasonable and meritorious cause of action for professional negligence;
After three separate attempts with three separate design professionals, none of them would agree to the consultation.
It is important to understand two things about the "Certificate of Merit."
1. It is the attorney who makes the declaration in the Certificate, not the design professional.
2. With one exception, which will be discussed below, the attorney does not have to disclose the identity of the design professional who was consulted.
Many design professionals, and some of the attorneys who defend them, believe the Certificate of Merit law has often been circumvented or ignored and ask what rights they have if plaintiff's counsel fails to comply.
Before the attorney can sign the Certificate of Merit, s/he must review the facts of the case with one design professional, licensed and practicing the same discipline as the defendant, and receive an opinion that the defendant was negligent in the performance of professional services. When that consultant's opinion has been received, the attorney may declare, under penalty of perjury, that s/he has concluded there is reasonable and meritorious cause to file a lawsuit. Curiously, the statute does not require the consultant's opinion to be in writing.
The Certificate of Merit statute provides the identity of the consultant is privileged information which is protected from disclosure. There is, however, one exception. The exception applies if the case goes to trial and the design professional wins. Upon winning, s/he may move the court to verify that plaintiff's attorney complied with the law about the Certificate of Merit. The trial Judge may then require the disclosure of the name, address and telephone number of the design professional who was consulted. The disclosure, however, is to the Judge only. The attorney for the defendant is not given the information.
If the trial Judge finds a failure to comply with the provisions of the law, the court may order plaintiff or their attorney or both to pay reasonable expenses, including attorneys fees, incurred by the defendant as a result of the failure to comply. (California Code of Civil Procedure § 411.35(h).)
In addition, should there be a violation of § 411.35, it may also constitute unprofessional conduct and be cause for disciplinary action against the attorney. (Code of Civil Procedure § 411.35(f)).
1) This includes licensed architects, engineers and land surveyors.