Via the Legal Profession Blog, a New Jersey appeals court explains why it’s a very different animal to sue your criminal defense lawyer for malpractice, as opposed to alleging ineffective assistance as a basis for reversal.

The plaintiff, Jeffrey Marrero, served 20 months of a five year robbery sentence, until he was released following reversal on appeal and a decision by prosecutors not to retry the case.  While the conviction was reversed for judicial error, cellphone evidence was raised in anticipation of retrial that would support the defendant’s alibi claims and contradict an equivocal identification.  And so the case was dropped.

Dissatisfied with the lawyer who tried, and lost, his case, and with merely being freed and his case dismissed, Marrero went the next step: malpractice.  He sued Howard Feintuch, the lawyer who, Marrero claimed, was negligent in investigating his defense, amassing the evidence and presenting it to the jury, all resulting in Marrero’s conviction.

This is the point where a criminal defense lawyer shifts gears.  While it’s long been my view that our ongoing duty to do no harm to former clients continues when they raise ineffective assistance of counsel claims, and indeed, if the defendant’s argument turns out to be truthful and accurate, we should support their position and fall on our sword,  But then, a claim of IAC is the defendant’s pursuit for vindication, not an attack on his lawyer.  Yes, I realize it feels like an attack, but the lawyer has nothing at risk except some possible hurt feelings.  You’ll get over it.

Suing for malpractice, however, terminates the obligation to support a former client.  Like grieving, it demands a response.  Your lawyer may love you dearly, but not enough to let you dig into his pocket and see what you can find.  Did you really think otherwise?

Feintuch subpoenaed a dear friend of Marrero’s for a deposition, a friend who was on the prosecutor’s witness list at his trial but who failed to show.  Now that’s a real friend.  Marrero moved to quash the subpena, and the trial court granted the motion.  The trial judge held that the friend went to Marrero’s “actual innocence,” which she held was not at issue in the malpractice action, rejecting the widely held premise that a defendant cannot benefit from his “iniquity,” and must prove actual innocence to maintain a malpractice action against his lawyer.

Instead, we accepted as a founding premise that “both the innocent and the guilty are entitled to competent counsel.” Id. at 288. Noting malpractice cases focus on “whether the plaintiff was damaged by an attorney’s negligent performance in the underlying criminal action[,]” we favored allowance of a remedy when a criminal defendant was damaged by the negligent conduct of an attorney who was duty bound to protect the client’s interests.

The appellate court accepted, as it must, the rule that actual innocence was not a required element of an action for malpractice, but nonetheless held that evidence that his defense was as defensible as he made it appear was indeed relevant to the action.

We reject Marrero’s assertion to bar Stenzer’s testimony because the State’s decision not to retry him resulted solely from defense counsel’s failure to introduce the telephone records. The ultimate decision not to pursue retrial was also greatly impacted by the victim’s equivocal identification and the unavailability of the assistant prosecutor who had participated in the first trial but had been deployed for military service in Iraq. We are told the defense had uncertified telephone records at trial but did not use them and that the State had listed Stenzer on its witness list to blunt any effect once the telephone records were offered. Thus, the production of the certified records alone did not cause the State to decline prosecution. Believing Stenzer’s testimony would have been damaging to Marrero in his criminal trial, defendants may have withheld the records, so as not to trigger the State’s presentation of Stenzer. Therefore, Stenzer’s deposition may confirm defendants’ assertion that their decision not to present the telephone records was not negligent.

That the rule in Jersey that even guilty defendants are entitled to competent representation is a good one, indeed an important one given that the guilty defendant is more in need of competent counsel than anyone else.  Beating weak cases isn’t nearly as difficult as beating the slam dunk guilty case.  Yet, a defendant should never forget the little details that go along with subsequent exoneration when deciding whether to sue the lawyer for malpractice.  Like the fact that you did it, and just skated, and there are witnesses who can turn you from hero to zero in no time flat.

There is an odd thing that happens in the heads of people who win their criminal cases, whether before, during or after trial.  They tend to forget that they were guilty, committed the crime and got lucky.  This may skew their perspective just a bit, causing them to have an inexplicable belief that the exoneration makes all the evidence of guilt disappear.  They similarly tend to forget that their defense lawyer knew all about the evidence that would sink them.

In revisiting how a trial might have ended differently, the criminal defendant may not have the best viewpoint on how their trial strategy developed.  For example, they may forget that the reason their lawyer decided not to open a particular door was because he knew about the huge, looming evidence monster hiding behind it.  Raise an issue and the prosecution is alerted to even better, stronger evidence than what they already have.  You didn’t want to do that in preparation for trial for a reason.  It doesn’t disappear because you’ve forgotten the reason after the case was dismissed.

This isn’t to suggest that lawyers who defend the accused should be allowed to commit malpractice with impunity, whether the defendant is guilty as sin or pure as the drive snow.  Both the innocent and guilty alike deserve competent counsel, and the fact that the rule is that only the defendant who was actually innocent suffers cognizable injury from malpractice doesn’t provide the proper incentives to those plead ’em and weep lawyers to do their jobs.

But the primary focus should be winning the case.  Once done, regardless of the basis for dismissal or reversal, take a serious step back before suing your lawyer. Think long, hard, and realistically about what was more responsible for your conviction, your guilt or his.  If you push the envelope, you may go from innocent in prison to guilty man walking.