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McKnight v. Office of the Public Defender

December 31, 2007


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, Docket No. L-3152-05.

The opinion of the court was delivered by: Fisher, J. A.D.



Argued September 10, 2007

Before Judges Stern, A.A. Rodríguez and C.S. Fisher.

In this appeal, we consider when a plaintiff's malpractice action against his criminal defense attorney accrues and whether -- as held by other jurisdictions -- the accrual date is impacted by whether a plaintiff is actually innocent of or has been exonerated from the underlying criminal charges. Because these additional elements tend to produce unpredictable and undesirable results, we reject their inclusion into an accrual standard. However, because the results of post-conviction proceedings may be fatal to or otherwise impact upon the presentation of a criminal malpractice action, we hereafter require that plaintiffs commence at the same time, if they have not already done so, post-conviction proceedings in the criminal matter, and that trial courts freely stay criminal malpractice actions until the underlying criminal proceedings reach their logical conclusion.



Plaintiff was born in Trinidad and Tobago, and in 1976, when he was five years old, came to live in the United States. On May 24, 2000, he engaged in a dispute with his girlfriend and was indicted. The Public Defender's Office assigned Kevin Walshe, Esq., to represent plaintiff and, based upon Walshe's advice, plaintiff pled guilty on July 26, 2000 to third-degree aggravated assault.

On September 12, 2000, the Immigration and Naturalization Service informed plaintiff that his plea had rendered him deportable. Six days later, on September 18, 2000, plaintiff moved to withdraw his guilty plea. On September 21, 2000, the judge denied the motion, concluding that the effect of a plea on a defendant's immigration status was a collateral consequence, citing State v. Chung, 210 N.J. Super. 427 (App. Div. 1986), and could not support the plaintiff's request for the withdrawal of his guilty plea. Plaintiff was sentenced that same day to a three-year prison term. His appeal was placed on a sentencing calendar, and we affirmed the judgment of conviction on June 5, 2001.

Plaintiff filed a petition for post-conviction relief (PCR) on October 24, 2001. The Public Defender's Office did not assign counsel to represent plaintiff until sometime in 2003. On September 12, 2003, a different judge (the PCR judge) conducted an evidentiary hearing into plaintiff's claim that he had been denied the effective assistance of counsel because Walshe had failed to advise him of the deportation consequences of his plea. At that time, the PCR judge heard testimony from plaintiff, Walshe, and two other attorneys from the Public Defender's Office who had appeared for plaintiff at various stages.

In a written opinion, the PCR judge thoroughly explained what he found had occurred when Walshe completed the plea form on July 26, 2000. Question 17 on the plea form posed the following question: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" The PCR judge found Walshe responded that the question was inapplicable, even though plaintiff was not a United States citizen. Rather than indicate that the question bore no relevance to plaintiff's guilty plea, the judge determined that the question should have triggered a discussion between plaintiff and Walshe regarding the potential for deportation. The judge's findings illuminate what occurred:

Mr. Walshe testified that he was unaware of [plaintiff's] immigration status when he completed plea forms for [plaintiff] on July 26, 2000, a Wednesday. In accordance with Mr. Walshe's usual procedure on busy Wednesday plea days, where conversations with a client take place quickly, under the pressure to see other waiting clients and in a noisy holding area, Mr. Walshe believes that on [plaintiff's] behalf Mr. Walshe himself circle "N/A" as the answer to Question 17 on the standard Plea Form without discussing it with [plaintiff] . . . .

Mr. Walshe testified that he would have done this based upon the assumption that [plaintiff] was a U.S. citizen, but without specific confirmation of this fact. Mr. Walshe's usual procedure on busy Wednesdays was to discuss a proposed sentence with his client, and if the client accepted a plea, indicate that questions 16 to 19 on the plea form did not apply to the client. He would therefore circle "N/A" in response to those questions, typically without ever discussing them with his clients. He would follow this procedure unless an accent or other specific information raised the citizenship issue.

Mr. Walshe testified that he was quite certain that he instructed [plaintiff] that questions 16 to 19 on the plea form did not apply to him.

Based on this advice, given during a very busy plea day, [plaintiff] did not independently review Question 17. This meant that Mr. Walshe and not [plaintiff] had made the decision that the question was not relevant.

Based upon these and other findings of fact, the PCR judge concluded that the application of the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984),*fn1 as applied in matters concluded by a guilty plea, Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985),*fn2 compelled a determination that plaintiff had been deprived of the effective assistance of counsel, and was entitled to have his guilty plea set aside. An order memorializing the PCR judge's decision was entered on December 3, 2003.

In granting relief, the PCR judge observed that plaintiff's native country had refused to accept him as a deportee, which led to plaintiff's "indefinite incarcerat[ion] in the United States for this crime." By the time post-conviction relief was granted, plaintiff had served half of his three-year prison term, even though he had otherwise been eligible for parole nine months into his term. The PCR judge found this to be "an additional penal consequence" resulting from the faulty advice rendered by Walshe.

After post-conviction relief was granted, the State agreed to allow plaintiff to plead guilty to a disorderly persons offense of using offensive language, for which he was fined $155, and also agreed to dismiss the other charges, for which plaintiff had served a considerable amount of prison time.


On February 13, 2004, acting pro se, plaintiff served a tort claim notice, stating his intent to seek damages because of defendants' allegedly negligent legal advice. His current counsel filed the complaint in this action against defendants on November 18, 2005.*fn3 Because the defendants here are a public entity and its employee, the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, has application to the claims asserted in the complaint. Defendants moved for summary judgment, urging that plaintiff failed to serve his notice of claim before "the ninetieth day after accrual of the cause of action," N.J.S.A. 59:8-8. This motion brought to a head the parties' dispute as to when this criminal malpractice action had accrued.

Plaintiff argued that the action did not accrue until the PCR judge granted relief on December 3, 2003, which, if correct, would mean that the notice of claim was timely served and the complaint timely filed; defendants argued that the cause of action accrued on September 12, 2000, when the INS gave notice that plaintiff's deportation would be sought, which would mean that the notice of claim was not timely served, that the time within which a judge could extend the ninety-day time frame for service of such a notice had elapsed,*fn4 and that the time to file suit against defendants had also expired.*fn5

In an oral decision, the trial judge determined that the cause of action accrued on September 12, 2000, and dismissed the action.


Plaintiff's appeal requires that we ascertain the accrual date of this legal malpractice action, which arises from the alleged negligent representation of an accused in a criminal matter (hereafter generally referred to as a "criminal malpractice action"). Since the material facts are not in dispute, we examine the summary judgment by considering whether the judge correctly identified the governing legal principles and whether these principles were correctly applied to the undisputed facts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Our Supreme Court has held that "a legal-malpractice action accrues when an attorney's breach of professional duty proximately causes a plaintiff's damages." Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993) (citations omitted). In many cases, however, the plaintiff "may reasonably be unaware of the underlying factual basis for a cause of action," id. at 493, such that it would be appropriate to deem the accrual of the action postponed until plaintiff learned of sufficient facts to warrant the commencement of the limitations period. Our Supreme Court, in quoting an earlier decision of the California Supreme Court, explained why the accrual of a legal malpractice action would permit application of the discovery rule and the concomitant postponement of the time of accrual:

[N]ot only may the client fail to recognize negligence when he sees it, but often he will lack any opportunity to see it. The doctor operates on an unconscious patient; although the attorney, the accountant, and the stockholder serves [sic] the conscious client, much of their work must be performed out of the client's view. In the legal field, the injury may lie concealed within the obtuse terminology of a will or contract; in the medical field the injury may lie hidden within the patient's body; in the accounting field, the injury may lie buried in the figure of the ledger. [Grunwald, supra, 131 N.J. at 494 (quoting Neel v. Magana, Olney, Levy, Cathcart & Gelfant, 491 P.2d 421, 428 (Cal. 1971).]

Here, nothing in the record suggests plaintiff knew the deportation consequences of his guilty plea or had an appreciation for his attorney's failure to provide advice in that regard when he entered his guilty plea. In short, on the present record, we conclude that plaintiff reasonably did not know what he now claims -- that substandard advice was rendered on or about July 26, 2000.

Although the discovery rule has application, we observe that plaintiff quickly learned his guilty plea had deportation consequences. Nevertheless, whether the hiatus between the rendering of allegedly substandard advice and plaintiff's awareness of this fact was long or short, ascertaining when the action accrued must be analyzed in the manner directed by Grunwald, namely, "the statute of limitations begins to run only when the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim." 131 N.J. at 494. These "key elements," the Court said, are injury (we use "damage" interchangeably with "injury") and fault. Legally-cognizable damages occur when a plaintiff detrimentally relies on the negligent advice of an attorney. Actual damages are those that are real and substantial as opposed to speculative. In the legal-malpractice context, actual damages may exist in the form of an adverse judgment. However, a client may suffer damages, in the form of attorney's fees, before a court has announced its decision in the underlying action. "'It is not necessary that all or even the greater part of the damages have to occur before the cause of action arises.'" Therefore, although an adverse judgment may increase a plaintiff's damages, it does not constitute an indispensable element to the accrual of a cause of action. [Id. at 495-96 (citations omitted).]

In this sense, the Court rejected the contention that "no legally-cognizable injury had occurred until the adverse judgment had been affirmed on appeal," and concluded that uncertainty about how the underlying case may be resolved "does not alter the time when the underlying injury or harm occurs and becomes cognizable for purposes of triggering the accrual of a cause of action." Id. at 496.

Turning to the fault aspect of the analysis in the legal-malpractice context, the Court in Grunwald observed that "knowledge of fault may occur before or during a judicial resolution of the underlying action," and also that the rendering of an adverse ruling need be neither the earliest nor latest ...

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