Facts: Marrero was convicted of armed robbery and sentenced to five years prison. After serving one year and eight months, Marrero was released after his indictment was dismissed.
Shortly, thereafter, Marrero filed suit against his attorneys in the criminal action. He alleged that his attorneys had failed to investigate or properly interview witnesses, neglected to support Marrero’s alibi by introducing his certified telephone records to show he was speaking to his girlfriend about the time the robbery occurred, undermined Marrero’s alibi during summation by improperly suggesting Marrero may have been talking to his girlfriend on a cell phone and improperly cross-examined plaintiff, allowing him to reiterate his out-of-court identification despite his inability to identify Marrero during trial.
In the legal malpractice action, Defendants subpoenaed certain information that would establish that Marrero was in fact guilty of the alleged crime. The trial court quashed the subpoena and found that Marrero’s guilt or innocence had nothing to do with the malpractice action. Defendants appealed.
Issue: Is a criminal defendant required to establish his innocence before pursuing a negligence claim against his former attorneys?
[T]he requirement of actual innocence illogically and unfairly bars valid and legitimate claims of malpractice…both the innocent and the guilty are entitled to competent counsel.
In McKnight, the Court identified a two track approach to determine when a claim of legal malpractice accrues in a criminal action: (1) actual knowledge of malpractice; and (2) the plaintiff takes steps to undo some of the harm allegedly caused by the negligent attorney.
Accordingly, innocence was not a prerequisite to Marrero’s action. Nevertheless, the Appellate Court determined that Defendants were entitled to pursue the subpoena which had been quashed by the trial court. To the extent discovery is reasonably calculated to lead to admissible evidence, it must be allowed. Here, the requested discovery was necessary for Defendants to establish a timeline of the events, question Marrero’s alibi, and establish that their professional judgment during trial was not negligent.
Further, the Court held that while "a trial within a trial" is not the only way to proceed in a legal malpractice action involving an underlying criminal matter, a court should not get involved in the decision unless there is disagreement between the parties as to this issue, and even then, only after the completion of discovery
Lesson: In New Jersey, innocence is not a prerequisite to bringing a legal malpractice claim. However, the Defendant attorneys will be entitled to all relevant discovery to establish that their alleged negligence was not the proximate cause of any damages sustained by the plaintiff, including evidence that may tend to establish the guilt of the malpractice plaintiff.