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Criminal defendants, even those who were convicted and never exonerated, can sue their counsel for malpractice, an Appellate Division panel has ruled.

The fact that plaintiff Eduardo Cortez pleaded guilty to federal tax charges and admits his culpability did not bar him from bringing a malpractice claim against his defense attorney, Joseph Gindhart, for not getting him a better plea deal, the court said in Cortez v. Gindhart, decided on May 21.

Cortez, who was sentenced to 36 months in prison, claimed that Gindhart refused to negotiate a plea agreement, and that the deal later struck by another attorney was less favorable than what the Department of Justice would have allowed earlier.

“Cortez’s allegation against Gindhart does not depend upon the invalidity of the conviction or his admission of guilt,” wrote appeals judge Marianne Espinosa, joined by Clarkson Fisher Jr. and Ellen Koblitz.

“His allegation that Gindhart failed to engage in any plea negotiations despite his requests could form the basis for a legal malpractice claim without evidence of exoneration if he was able to prove that he suffered an actual injury that was proximately caused by the alleged negligence.”

Nevertheless, the panel affirmed a lower court’s dismissal of Cortez’s suit, finding it was without merit because he had no evidence showing that a more favorable plea offer was available to him at any time while Gindhart represented him.

Cortez, the owner and operator of People’s Multiple Services, a tax preparation business in Atlantic City, retained Gindhart in 2004 after the Internal Revenue Service began an investigation into whether the company was preparing fraudulent tax returns for its customers.

Gindhart continued to represent Cortez until May 2008, about a month after he was indicted and a criminal case was brought against him in federal court in Camden.

Federal prosecutors were planning to seek Gindhart’s disqualification for reasons not stated in the opinion, when Cortez replaced him with Ellen Brotman of Montgomery McCracken Walker & Rhoads in Philadelphia.

In August 2008, Brotman negotiated a deal under which Cortez pleaded guilty to conspiracy to defraud the United States and attempted tax evasion. Each charge carried a maximum sentence of five years and maximum fine of $250,000.

Both sides agreed that Cortez owed the U.S. government at least $598,674 in restitution, but they differed on prison time under the federal sentencing guidelines.

Prosecutors calculated an offense level of 23, with a recommended range of 46 to 57 months’ imprisonment, while the defense saw it as a level 21, with a range of 37 to 46 months.

On Feb. 17, 2009, U.S. District Judge Noel Hillman imposed 36 months on each count, to be served concurrently, followed by three years of supervision, and ordered Cortez to pay $442,734 in restitution.

Cortez’s malpractice suit, filed in Camden County in May 2012, alleged that he repeatedly asked Gindhart to negotiate a plea agreement but Gindhart refused to do so and claimed Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result, received a harsher sentence.

Gindhart moved to dismiss on the ground that exoneration is a prerequisite to any claim arising from a criminal defense attorney’s representation of a client.

Cortez, who was disputing only his sentence, contended that his guilt or innocence was not relevant.

Superior Court Judge Stephen Holden granted summary judgment and dismissed the case, stating that “for…a criminal defendant who’s entered a guilty plea to argue that his lawyer committed malpractice, there would have to have been either a vacation of the plea or an exoneration.”

Holden cited McKnight v. Public Defender, 197 N.J. 180 (2008), which held that a legal malpractice claim against a criminal defense lawyer accrues when a criminal defendant is exonerated.

Espinosa held that McKnight did not bar Cortez’s claim because the plaintiff there claimed he was wrongfully convicted due to his public defender’s negligence, while the issue in Cortez was not timing or the validity of the conviction.

Even a guilty defendant who admits to a crime can be harmed by a lawyer’s negligence in the plea process, the court said. For example, where a lawyer did not convey a plea by a cut-off date, resulting in a harsher sentence at trial, a malpractice claim would not depend on the invalidity of the conviction or the repudiation of a guilty plea, the panel said.

The panel affirmed, however, finding that Cortez’s claim failed on the merits because his 36-month sentence was within the range mentioned in a 2006 letter from the government about a possible plea deal, and there was no evidence that any better terms were available while Gindhart was his lawyer.

Morton, Pennsylvania, solo Matthew Weisberg, who represents Cortez, said he will seek rehearing or certification because the Appellate Division converted a prediscovery motion to dismiss into a motion for summary judgment and then said he had no evidence, “which is fundamentally incorrect and unfair.”

Gindhart’s lawyer, Matthew Marrone of Goldberg Segalla in Princeton, called the malpractice allegations “baseless.”

Gindhart and Brotman declined comment.

Darren Gelber, of Wilentz Goldman & Spitzer in Woodbridge, and president of the Association of Criminal Defense Lawyers of New Jersey, and Christopher Adams, a vice president, said the opinion places defense lawyers in a difficult position given what they described as a growing trend toward the use of escalating plea offers by state and county prosecutors.

They describe a scenario in which defense counsel are presented with a plea offer early in a case and told that it is the best they can do and they have days or at most a few weeks to accept.

Adams, a Holmdel solo, said the deal is off the table before you have a realistic opportunity to investigate, file motions and do the things that you should do to avoid committing malpractice but, under Cortez, “you potentially expose yourself to malpractice anyway, because the plea offer’s going to change.”

Contact the reporter at mgallagher@alm.com