November 26, 2008
GARVIN MCKNIGHT, PLAINTIFF-APPELLANT,
OFFICE OF THE PUBLIC DEFENDER AND KEVIN WALSHE, ESQ., DEFENDANTS-RESPONDENTS. AND JOHN DOES, ESQS., 1-10 AND JANE DOES, ESQS., 1-10 A FICTITIOUS DESIGNATION FOR PRESENTLY UNKNOWN LICENSED ATTORNEYS, PROFESSIONALS AND/OR UNKNOWN PERSONS OR ENTITIES, DEFENDANTS.
On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 397 N.J. Super. 265 (2007).
SYLLABUS BY THE COURT
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this case, the Court decides when a malpractice claim by a criminal defendant against his defense attorney accrued, thereby triggering the running of the statute of limitations period. The Court also considers the effect on the accrual date of the criminal defendant's exoneration through post-conviction relief.
Plaintiff Garvin McKnight was born in Trinidad and Tobago. He came to the United States in 1976, when he was five years old. In 2000, McKnight and his girlfriend had a dispute that resulted in his indictment. He was appointed a Public Defender, Kevin Walshe, Esquire. Based on Walshe's advice, McKnight pled guilty to third-degree aggravated assault on July 26, 2000. On September 12, 2000, the Immigration and Naturalization Service (INS) informed McKnight that he would be deported because of his guilty plea. McKnight moved to withdraw his plea, but the motion was denied on September 21, 2000, after the judge determined that the effect of a plea on a defendant's immigration status could not support a request to withdraw the plea. McKnight was sentenced to a three-year prison term. The conviction was affirmed by the Appellate Division on June 5, 2001. McKnight's native country refused to accept him as a deportee and he was incarcerated here.
McKnight filed a petition for post-conviction relief (PCR) in October 2001. The Public Defender's Office did not assign counsel to represent McKnight until 2003. After holding an evidentiary hearing, the PCR judge concluded on December 3, 2003, that Walshe failed to advise McKnight of the deportation consequences of his plea, therefore he had been deprived of the effective assistance of counsel and was entitled to have his plea set aside. By this time, McKnight had served half of his three-year prison sentence, even though he had been eligible for parole nine months into his term. After post-conviction relief was granted, McKnight was allowed to plead guilty to a disorderly persons offense. He was fined $155. The State dismissed the remaining charges.
In February 2004, McKnight served a tort claim notice stating his intent to seek damages from the Office of the Public Defender and Walshe because of the negligent legal advice that led to his guilty plea. After the legal malpractice complaint was filed in November 2005, the Office of the Public Defender and Walshe moved for summary judgment, arguing that the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, applies to this case because the claim was asserted against a public entity and its employee. They argued further that McKnight failed to comply with a provision of the Act that requires service of a tort claim notice before the ninetieth day after accrual of the claim, and they asserted that the claim accrued on September 12, 2000, when INS informed McKnight that he would be deported. McKnight responded by arguing that the claim accrued when the PCR judge granted relief on December 3, 2003, therefore the notice was timely served and the complaint was timely filed within the two-year statute of limitations triggered by the accrual of the claim. The trial judge determined that the claim accrued on September 12, 2000, and dismissed McKnight's complaint.
The Appellate Division affirmed in a split decision. 397 N.J. Super. 265 (2007). The majority of the Appellate Division panel adopted a two-track approach to determining the date that a cause of action accrues in this type of case. The first track defines the accrual date as the date that the criminal defendant knew or had reason to know of attorney negligence that proximately caused damages, and requires that the malpractice action be commenced within the limitations period following that date, which is two years for actions against a publicly-employed attorney. The second track requires that post-conviction proceedings be commenced no later than the date of the filing of the civil complaint. Depending on the status of the post-conviction application, the majority stated that the trial court should stay the civil suit because the results of post-conviction proceedings often impact the civil action. The majority declined, however, to adopt a process that required actual innocence by the criminal defendant or that fixed the accrual date on his or her exoneration. With regard to this case, the majority determined that McKnight's cause of action accrued on September 21, 2000, when the trial court denied his motion to withdraw the guilty plea. The majority explained that by September 21, 2000, McKnight knew of the attorney's failure to advise of the deportation consequences of a guilty plea, was aware that deportation was being sought, and was confronted with the fact that his attempt to abort the deportation proceedings through a withdrawal of his plea had failed. Because the limitations period for filing a malpractice claim against a publicly-employed attorney began to run on that date and ended two years later, the panel determined that McKnight failed to timely file his complaint.
In a dissenting opinion, Judge Stern opined that obtaining post-conviction relief is necessary to prove damages in the malpractice action; therefore, accrual of the malpractice action cannot occur until the criminal defendant has been exonerated. Exoneration, according to Judge Stern, might consist of dismissal of the charges, acquittal on retrial, conviction of a lesser included offense, or other similar relief. Judge Stern determined that McKnight's cause of action was not time barred under that standard.
HELD: In a legal malpractice action brought by a criminal defendant against the attorney who represented him or her in a criminal case, the claim does not accrue and the statute of limitations does not begin to run until the criminal defendant receives relief through some form of exoneration.
1. The judgment of the Appellate Division is reversed substantially for the reasons expressed in Judge Stern's dissenting opinion, and McKnight's malpractice action is reinstated. In a malpractice action brought by a criminal defendant against the attorney who represented him in a criminal case, the statute of limitations does not begin to run until he or she receives relief in the form of exoneration. As explained by Judge Stern, exoneration may consist of vacation of a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending substantial time in custody following conviction for a greater offense, or any disposition more beneficial than the original judgment. The criminal defendant has to be exonerated to the point of being able to show some injury caused by the alleged malpractice, whether that relief is dismissal of the charges, acquittal on retrial, conviction of a lesser included offense, or other such relief. (P. 2).
2. In cases in which a criminal defendant files a petition for post-conviction relief alleging ineffective assistance of counsel, affirmative relief through some form of exoneration may not occur until many years later. Additionally, because of the statute of limitations governing malpractice actions, much time may elapse after exoneration before a malpractice action is filed. As a matter of fairness, the attorney who is the subject of a claim of ineffectiveness of counsel in a PCR petition and who may be subject to a future malpractice lawsuit should receive notice as soon as practicable. The Court refers this matter to the Supreme Court Criminal Practice Committee to draft an appropriate rule requiring that a copy of any PCR petition alleging ineffective assistance of counsel be forwarded to the attorney whose performance has been placed in question. The new rule should provide also that in cases in which the attorney is employed by the Public Defender's Office or a law firm, those entities will receive notice as well because they also may be subject to suit. This approach will place the attorneys and appropriate entities on notice of a potential lawsuit and will allow for the retention of the files relating to the case. (Pp. 3-4).
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this Opinion.
Argued October 21, 2008
We reverse the appellate panel's judgment substantially for the reasons given by Judge Stern in his dissenting opinion and therefore reinstate plaintiff's malpractice action. Accordingly, in a legal malpractice action brought by a defendant against the attorney who represented him in a criminal case, the statute of limitations does not begin to run until the defendant receives relief in the form of exoneration. McKnight v. Office of the Pub. Defender, 397 N.J. Super. 265, 295-301 (App. Div. 2007). Judge Stern noted that exoneration "might be vacation of a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending substantial time in custody following conviction for a greater offense or any disposition more beneficial to the criminal defendant than the original judgment." Id. at 298. Judge Stern also emphasized that "defendant has to be exonerated to the point of being able to show some injury caused by the alleged malpractice whether that relief is dismissal of the charges, acquittal on retrial, conviction of a lesser included offense or otherwise . . . ."
Id. at 300-01.
We add the following. In those cases in which a criminal defendant files a petition for post-conviction relief (PCR) alleging ineffectiveness of counsel, affirmative relief through some form of exoneration may not occur until many years later.
Given the statute of limitations governing malpractice actions, much time may elapse after exoneration before the filing of a malpractice action. Basic notions of fairness dictate that an attorney who is the subject of a claim of ineffectiveness of counsel in a PCR petition, and who may be subject to a future malpractice lawsuit, should receive notice as soon as practicable under the circumstances.
That leads us to the following conclusion. When a PCR petition alleging ineffectiveness of counsel is filed, a copy of that petition should also be forwarded to the attorney whose performance has been placed in question. In cases in which the attorney is employed by the Public Defender's Office or a law firm, those entities should receive notice as well because they too may be subject to suit. That approach will not only place the attorneys and the appropriate entities on notice of a potential lawsuit, but also allow for the retention of files related to the case. Our court rules provide that a PCR petition must be "file[d] with the criminal division manager's office of the county in which the conviction took place[,]" R. 3:22-1, that the petition must be transmitted to the appropriate county prosecutor, R. 3:22-7, and that notification of the petition's filing must be given to the Assignment Judge or the Assignment Judge's designee, ibid. Likewise, we believe that our court rules should provide for the transmittal of a copy of the PCR petition to the attorney who is alleged to have denied his client the effective assistance of counsel and to the office or entity where he was employed at the time of his representation of the criminal defendant.
We refer this matter to the New Jersey Supreme Court Criminal Practice Committee to draft for our approval an appropriate rule consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in this opinion.
Chief Justice Rabner PRESIDING
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