Before Judges Skillman, D'Annunzio and Fall.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
This is a unique case involving a claim of legal malpractice allegedly committed by defense counsel in the context of a criminal prosecution. Plaintiff Raymond McGrogan pled guilty to a federal indictment on December 18, 1989. He was sentenced on January 27, 1992 and filed his malpractice complaint on September 27, 1997. The trial court applied the six-year statute of limitations, N.J.S.A. 2A:14-1, and ruled that the limitations period began to run when McGrogan pled guilty rather than on the sentencing date. McGrogan appeals from the judgment dismissing his complaint.
This appeal initially was calendared in June 1999. In an unpublished opinion we raised sua sponte the following issues: (1) whether N.J.S.A. 2A:14-2, establishing a two-year limitations period for injuries to the person, is applicable rather than the six-year period specified in N.J.S.A. 2A:14-1; and (2) whether an action for legal malpractice can be sustained when the subject conviction has not been reversed or vacated. We ordered the parties to file supplemental briefs on these issues, and the appeal was re-argued. We now affirm.
The material facts are not in dispute. McGrogan was a plumbing contractor and a member of the Wayne Township Planning Board. In 1988 he was charged with conspiring with other Wayne officials to extort money from developers who had projects in Wayne Township. It appears that defendant Till began representing McGrogan at that time.
On February 2, 1989, McGrogan was indicted. The indictment was in four counts. A superseding indictment was filed on April 6, 1989. On April 26, 1989, Till terminated his representation of McGrogan and the court appointed Lawrence Lustberg, a federal public defender, as McGrogan's new lawyer. McGrogan entered into a written plea agreement with the Justice Department dated December 4, 1989. Pursuant to that agreement, he pled guilty to count three of the superseding indictment on December 18, 1989. Count three charged that McGrogan conspired with Louis Messercola, the Mayor of Wayne Township, and with Thomas Acquaviva, also a member of the planning board, to extort money from a joint venture "engaged in a project to construct residential apartment buildings" in Wayne. McGrogan admitted that he received a $10,000 bribe from the joint venture. He retained $5,000, Messercoca received $4,500, and Acquaviva kept $500.
The plea agreement did not include a sentencing recommendation, but the government agreed to dismiss other charges. McGrogan agreed to cooperate with the government and provide evidence against others. On January 27, 1992, the court sentenced McGrogan to an eighteen-month prison term "on condition that the defendant be confined in a community treatment center (Halfway House) for a period of Four (4) months, the execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant is placed on Probation for a period of five years." McGrogan was required to perform 200 hours of community service per year of probation and to pay a fine of $5,000.
On September 2, 1997, McGrogan commenced this action against Till and his law firm. McGrogan's core contentions are contained in paragraphs three and four of the first count of his complaint and in paragraphs two and three of the second count. We reproduce them here:
3. During the course of his representation of the plaintiff, Raymond McGrogan, the defendant, Peter Till failed to properly and adequately communicate with the prosecuting authorities and investigating authorities of the Office of the United States Attorney and did fail to properly and adequately advise and counsel the plaintiff, Raymond McGrogan, with respect to offers of immunity and other offers involving cooperation of Raymond McGrogan with the United States Government and did otherwise in his representation of Raymond McGrogan fail to conform to that standard of competence and reasonable skill in the legal profession involving the representation of defendants as Till represented himself as possessing and otherwise failed to provide adequate competent, diligent and timely representation to the plaintiff and did otherwise deviate from accepted standards of legal practice which resulted in the plaintiff, Raymond McGrogan, being indicted on Four Criminal Counts and ultimately being compelled to plead Guilty to one such count, being stigmatized with a criminal conviction, suffer a loss of liberty, all of which would have been avoided had the defendant, Peter Till, provided proper, adequate and competent representation to the plaintiff Raymond McGrogan.
4. As a direct and proximate result of the actions and inactions of the defendant, Peter Till, as aforesaid, the plaintiff, Raymond McGrogan, was caused to be Indicted, incur a criminal record, lose his liberty, expend time in public service and otherwise sustained economic and emotional loss resulting from the negligent professional representations and course of conduct by the defendant, Peter Till.
2. The defendant, Peter Till did negligently represent and mismanage the representation of the plaintiff by failure to adequately and properly advise the plaintiff of the available opportunities to cooperate with the government and to avoid a criminal conviction and did otherwise fail to properly advise the defendant of offers and invitations provided by the Federal Government and is responsible to the plaintiff pursuant to N.J.S.A. 2A:13-4.
3. As a direct and proximate result of the actions and inactions of the defendant, Peter Till, as aforesaid, the plaintiff, Raymond McGrogan, was caused to be Indicted, incur a criminal record, lose his liberty, expend time in public service and otherwise sustained economic and emotional loss resulting from the negligent professional representations and course of conduct by the defendant, Peter Till.
The primary issue is when did the statute of limitations begin to run on plaintiffs' legal malpractice action. That was also the issue in Grunwald v. Bronkesh, 131 N.J. 483 (1993). Grunwald involved a claim arising out of a proposed sale of realty by Grunwald to Resorts International Hotel and Casino, Inc. Resorts signed an option agreement but also inadvertently signed the contract attached to the option agreement. Grunwald alleged that his lawyer, defendant Bronkesh, advised him that Resorts was bound by the contract it had signed. When Resorts declined to acquire the property, Grunwald sued Resorts, but lost. Plaintiff appealed the judgment, and the Appellate Division affirmed. The issue was whether plaintiff's cause of action against Bronkesh accrued when the trial court ruled against plaintiff or when the Appellate Division affirmed the trial court judgment.
In Grunwald, our Supreme Court noted that "a legal- malpractice action accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages." Id. at 492. The discovery rule, however, "postpone[s] the accrual of a cause of action when a plaintiff does not and cannot know the facts that constitute an actionable claim." Ibid. The Court observed that knowledge in the context of the discovery rule "involves two key elements, injury and fault." Id. at 492-93.
Thus, the discovery rule encompasses two types of plaintiffs: those who do not become aware of their injury until the statute of limitations has expired, and those who are aware of their injury but do not know that it may be attributable to the fault of another. [Grunwald, supra, 131 N.J. at 493.]
The Grunwald Court held that the discovery rule applied to legal-malpractice actions and the limitations period "begins to run only when the client suffers actual damage and discovers, or through the use of reasonable diligence should ...