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Mark Lanzilotti v. Mark S. Greenberg

August 3, 2011

MARK LANZILOTTI, PLAINTIFF-APPELLANT,
v.
MARK S. GREENBERG, ESQ. AND STEPHEN LACHEEN & ASSOCIATES, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1675-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2011

Before Judges Cuff, Simonelli and Fasciale.

This matter involves plaintiff Mark Lanzilotti's allegations of legal malpractice and fraud against his former attorney, defendant Mark Greenberg,*fn1 who represented Lanzilotti in a criminal matter in the United States District Court for the Eastern District of Pennsylvania. A jury convicted Lanzilotti on several drug-trafficking charges. Lanzilotti was sentenced to two concurrent terms of life imprisonment. The United States Court of Appeals for the Third Circuit affirmed the conviction and sentence, and the United States Supreme Court denied Lanzilotti's petition for certiorari. United States v. Lanzilotti, 58 F. App'x 890, 901 (3d Cir.), cert. denied, 540 U.S. 864, 124 S. Ct. 176, 157 L. Ed. 2d 117 (2003). Following the appeal, pursuant to a stipulation Lanzilotti's sentence was vacated and he was resentenced to a term of thirty-years imprisonment. He is presently serving his sentence in a federal facility in Pennsylvania.

Lanzilotti admits his involvement in the manufacture of methamphetamine, that the evidence against him was overwhelming and he had no absolute defenses. However, he claims he would have received a lesser sentence had Greenberg not committed malpractice by making fraudulent misrepresentations about plea agreements, the untrustworthiness of the government's plea negotiations, and the "winnability" of his case.

The trial judge granted summary judgment to Greenberg, concluding that an expert was required to establish the standard of care and breach thereof. Alternatively, the judge concluded that exoneration is a predicate for a legal-malpractice claim arising from a criminal prosecution. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Lanzilotti was arrested as the result of his involvement in the manufacturing of methamphetamine in Pennsylvania and New Jersey. He delivered phenyl-2-propanone (P2P) oil, the main ingredient used to manufacture or "cook" the methamphetamine. He and his coconspirators were indicted in Pennsylvania on several drug-trafficking charges.*fn2

Prior to Lanzilotti's arrest, he and Marc "One Star" met with Greenberg and paid him a $5000 retainer, half of which One Star paid. Lanzilotti had a long-standing personal relationship with One Star, and Greenberg had represented One Star in an unrelated criminal matter involving the manufacture of methamphetamine. After Lanzilotti's arrest, he and One Star again met with Greenberg, and One Star continued to pay Lanzilotti's legal fees.

Following his arrest, Lanzilotti knew the federal government sought his cooperation and wanted information about One Star, who the government believed to be the P2P oil supplier. Lanzilotti did not cooperate, due to either loyalty to One Star or fear of retribution. However, he claims that Greenberg advised him there was no benefit to cooperating because Lanzilotti would receive the same sentence, thirty years to life, as if he lost at trial, even if he cooperated; rather, Greenberg advised Lanzilotti that his "only option here is to go to trial and win and get no time, and we can win. It's a winnable case."

Lanzilotti also claims he asked Greenberg to negotiate a plea agreement but Greenberg advised against it stating, "the feds can't be trusted. There's nothing to make them stand by their word, I'm telling you, I got experience in this, they're just going to screw you over." Lanzilotti admitted, however, that Greenberg's statements made no sense to him based on his understanding that "[n]obody goes to trial. Everybody knows that you can't beat the feds." Lanzilotti also admitted that One Star and Richard Haag, another seasoned criminal Lanzilotti knew, told him there was no benefit to a plea deal because "[t]he feds can't be trusted."

Prior to trial, Lanzilotti and Greenberg attended a reverse proffer, where the government presented all of the evidence it had accumulated against Lanzilotti. According to Lanzilotti, Greenberg explained that the Assistant U.S. attorney asked them to attend the reverse proffer because he believed Greenberg was not telling Lanzilotti everything about his exposure if he proceeded to trial. Lanzilotti understood that the Assistant U.S. attorney also believed Greenberg might be telling Lanzilotti that if he went to trial and lost, he would only receive a five to ten-year term of imprisonment. Notably, Lanzilotti admitted that the United States attorney emphasized at the reverse proffer that he faced thirty years to life imprisonment but would face "a lot less time" if he cooperated. Lanzilotti did not cooperate. Instead, he proceeded to trial, where he gave perjured testimony.

A jury convicted Lanzilotti of manufacturing methamphetamine and conspiracy to manufacture methamphetamine. Following the verdict, the government offered him another opportunity to cooperate and explained the mandatory minimum sentences and United States Sentencing Guidelines (USSG).*fn3

Plaintiff knew he faced thirty years to life imprisonment but still did not cooperate. He claims he did not cooperate because Greenberg said he would have to retain another attorney.

Prior to sentencing, Greenberg advised Lanzilotti, in writing, that the United States attorney placed Lanzilotti on a "43" offense level, which carries a mandatory sentence of life imprisonment, calculated as follows: a base "38" offense level based on the quantity of methamphetamine manufactured, plus a three-level enhancement for defendant's supervisory role in the "cooks" of the ...


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