A client’s guilty plea doesn’t bar a malpractice suit against the attorney whose bad advice led to the criminal charges, New Jersey’s Supreme Court has affirmed.
The justices on Sept. 11 refused to review an appeals court ruling, Winstock v. Galasso, that drew a distinction between pre- and post-crime legal advice.
A lawyer now, with Winstock in mind, “must have a higher level of sensitivity to his exercise of independent professional judgment,” says Bennett Wasserman, a longtime malpractice attorney. “It places the responsibility where it should be placed. A client who seeks out advice has a right to rely on that advice.”
The suit accused Ridgewood solo Amato Galasso of giving faulty advice to Roxbury police sergeant Richard Winstock, who, along with his wife and a fellow officer, were looking to set up a paid poker tournament club in Dover.
Galasso, himself a ranked poker player, wrote a November 2004 memorandum saying the club would not violate state gaming laws because Winstock wouldn’t be taking a cut of the wagers.
Galasso likened the club to card games among country club members. “The country club is not profiting directly from the members playing these games,” he wrote.
Winstock went ahead but later was criminally charged by the Morris County Prosecutor’s Office with violating gaming statutes. He pleaded guilty in September 2007 and received two years’ probation.
Morris County Superior Court Judge W. Hunt Dumont dismissed Winstock’s subsequent malpractice claim against Galasso, relying on Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001). There, the court said a client who pleads guilty to a crime may not renounce the plea in a subsequent malpractice action and therefore is estopped to sue his lawyer.
But Appellate Division Judges Jose Fuentes, Ronald Graves and Jonathan Harris reversed in Winstock, distinguishing Alampi, where the plaintiff committed his criminal act before obtaining the legal advice.
Winstock’s guilty plea was not “an impenetrable wall” and doesn’t preclude arguing that Galasso’s advice was a proximate cause of the damages incurred by operating the club, Fuentes said, though he noted that Winstock’s admissions in entering the plea could be used as evidence working against his malpractice claim.
Winstock “does have to raise the vigilance of a lawyer,” says Wasserman, of counsel at Davis, Saperstein & Salomon in Teaneck, and general counsel of LegalMalpractice.com, which offers expert testimony and other consulting services.
“The lawyer has to be able to stand up and say, ‘no, you can’t do it, and I won’t be a part of it,’” Wasserman says.
Winstock stands for law that the Legislature would be very unlikely to attempt to change, in light of the judiciary’s constitutional authority over lawyer conduct, he says.
Plaintiffs in similar situations could run into difficulty if malpractice carriers, arguing that a lawyer’s conduct is intentional or criminal, attempt to invoke a coverage disclaimer, Wasserman says. “I think the insurers will have a good argument there.”
Robert Hille of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, who represented Galasso and had defended other professional liability actions, says Winstock “shifts responsibility, really, to the lawyer for activities the clients engage in.”
“They’re going to be sued every time,” possibly prompting more weak cases to be settled, he says.
Hille adds that the exposure could apply to client violations of regulatory or other types of law, not just criminal.
Winstock and Galasso settled on undisclosed terms last month, and the court was advised of the resolution, Hille says. It’s unclear whether that contributed to its denial of the certification petition.
Winstock’s lawyer, Gabriel Halpern of PinilisHalpern in Morristown, did not return a call Friday but previously told the Law Journal that Winstock relied on Galasso’s advice and didn’t believe he was breaking the law when he set up the poker club. •