Attorney Malpractice Claim in Underlying Criminal Case Need Not Show Defendant Would have Been Exonerated

New Jersey – Appellate Division. In Cortez v. GindhartNo. A-0430-12T1 (App. Div. May 21, 2014) the Appellate Division rejected the traditional notion that in order to assert a legal malpractice claim in an underlying criminal case, the defendant must prove that he would have been exonerated but for the attorney’s negligence. Eduardo Cortez was represented by Joseph G. Gindhart in connection with several violations of the Internal Revenue Code. He claimed that Gindhard failed to engage in plea negotiations and, as a result, he was forced to retain new counsel who negotiated a plea agreement that resulted in a thirty-six month period of incarceration, restitution in the amount of $442,734, a special assessment of $100, and a three-year term of supervised release.

Gindhart moved to dismiss the legal malpractice complaint, claiming that Cortez had to prove that he would have been exonerated. The trial court granted summary judgment. The Appellate Division affirmed the dismissal, but explained that the view that exoneration was required “rested upon a misinterpretation” of precedent. In the leading cases, McKnight v. Office of the Public Defender197 N.J. 180 (2008) and Rogers v. Cape May Cnty. Office of the Pub. Defender208 N.J. 414 (2011), the New Jersey Supreme Court found that the accrual of a legal malpractice action occurs when the conviction is shown to be invalid, with some degree of finality. Cortez freely admitted his guilt of the offense. Rather, he claimed a lost opportunity as a result of Gindhart’s alleged negligence; he was deprived of the opportunity to accept a more favorable plea offer and thus received a harsher sentence.

Noting that attorneys are not guarantors of results, the Appellate Division explained that attorneys are charged with exploring the possibility of resolving criminal charges through plea agreements, keeping a client informed of a plea offer, and to follow a client’s instructions in accepting or rejecting a plea offer. As a result, even if a client pleads guilty, an attorney may be negligent in discharging his duties on behalf of that client. According to the Appellate Division, failing to engage in plea negotiations on behalf of a client “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.”

Notwithstanding this, the court found that Cortez’s legal malpractice claim failed because he failed to bring forth any evidence that he could have gotten a plea offer better than the one he ultimately accepted.