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A criminal defendant need not be acquitted at trial or later exonerated in order to sue his lawyer for malpractice, a divided appeals court ruled on Monday. The court held, 2-1, that making acquittal or post-conviction exoneration a predicate to a malpractice cause of action � as some states do � bars valid claims and fails to set a predictable or desirable accrual date. “[In] our view, requiring that a plaintiff both plead and prove actual innocence imposes an unrealistic and far too strenuous obstacle on a criminal malpractice action,” Appellate Division Judges Clarkson Fisher Jr. and Ariel Rodriguez wrote in McKnight v. Office of the Public Defender , A-5527-05. But the judges, finding the result of the post-conviction proceeding relevant to the civil suit, held a malpractice plaintiff must file a PCR petition at the same time, if not done already, and said a trial court should freely stay the civil suit until the PCR case concludes. The dissenter, Judge Edwin Stern, said the standard enunciated by the majority was too lax and there should be “at least some exoneration” in order for a malpractice claim to proceed. He said the ruling could invite suit by any defendant dissatisfied with the result in his case. Although the majority opinion enunciates a rule generally beneficial to malpractice plaintiffs, it is a loss for plaintiff Garvin McKnight. The judges found his malpractice claim accrued from the date he was allegedly given deficient advice and that he failed to file a timely notice of claim under the Tort Claims Act and to file a complaint within the statute’s two-year limitations period. In July 2000, McKnight pleaded guilty to third-degree assault. His lawyer, Assistant Deputy Public Defender Kevin Walshe, did not advise McKnight, who is not a U.S. citizen, that the conviction would make him deportable to Trinidad and Tobago, his country of nationality. Immigration authorities so advised McKnight in September and he moved at once to withdraw his plea, but the trial judge denied the motion and sentenced him to three years in prison. While in jail, McKnight petitioned for post-conviction relief on the grounds he had been deprived of effective assistance of counsel, and on Dec. 3, 2003, a judge allowed him to withdraw his assault plea and to plead guilty to using offensive language, which carries a $155 fine. In February 2004, McKnight filed a pro se notice of claim against the Office of the Public Defender. The malpractice complaint itself was filed in November 2005. A trial judge ruled that the claim and complaint were untimely, finding the Tort Claims Act’s 90-day notice period and two-year limitations period began running Sept. 21, 2000, the date the original motion to withdraw the guilty plea was denied. McKnight’s lawyer, Kenneth Thyne of Totowa’s Roper & Twardowsky, argued that the notice and limitations period did not start running until Dec. 3, 2003, when the PCR petition was granted and the assault conviction was nullified by withdrawal of the plea. To determine when the cause of action accrued, the appeals court applied Grunwald v. Bronkesh, 131 N.J. 483 (1993), which says a statute of limitations begins to run when the client suffers actual damage and discovers, or should discover through use of reasonable diligence, that his attorney’s negligence was the cause. They found that McKnight, as of Sept. 21, 2000, “knew of the attorney’s failure to advise of the deportation consequences, was certainly aware that deportation was being sought, and was confronted with the fact that his attempt to abort those deportation proceedings through a withdrawal of his guilty plea had failed.” However, the court, noting the law on accrual of criminal malpractice suits is murky in New Jersey, sought to give guidance in future cases. Building on its ruling in Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001), the court declined to join states requiring proof of innocence for malpractice claims to proceed. “In summary, we reject the imposition of the additional element of actual innocence because it requires that the plaintiff prove too much,” Fisher wrote for the court. “[T]he plaintiff’s actual innocence has no real nexus to the issues raised in the malpractice action; were we to state otherwise, we would essentially be holding that guilty persons are not entitled to competent representation. [T]he imposition of an actual innocence element can only serve to bar an enormous percentage of such claims for no reason other than to satisfy a policy antagonistic to the accused.” Instead, the majority crafted a two-track approach, requiring plaintiffs first to abide by the Grunwalddiscovery rule and second to start PCR proceedings no later than the filing date of the malpractice complaint. In most circumstances, the malpractice action will be delayed until the completion of the PCR proceedings. The two-track requirement makes it “better and more practical for attorneys and their insurers to know sooner of the claims” rather than years later if, for some reason, PCR proceedings are delayed, Fisher wrote for the court. Thyne, McKnight’s lawyer, though disappointed with the outcome, says the Appellate Division ruling does set down some needed guidelines. “Before this, the law was pretty unclear,” he says. Thyne plans to appeal the ruling to the extent it dispenses completely with the requirement of exoneration. “If my wife kills me by throwing a dish at me and she’s convicted of murder when she’s only guilty of manslaughter, does that mean her lawyer committed malpractice? I don’t think so. I don’t think the Court will want to go that far,” he says. The split decision guarantees a right to appeal to the state Supreme Court. The majority rejected arguments made by Deputy Attorney General Karen Jordan, assigned to represent the Public Defender, that McKnight could not pursue a claim since he was, in fact, guilty of committing some crime. Lee Moore, a spokesman for Attorney General Anne Milgram, says the decision will bring more predictability. “Criminal defense attorneys will know at an earlier, more defined point in time that they may be subject to legal malpractice claims,” he says.

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