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NJ: Clock doesn't start until post conviction relief is received

McKnight v. Office of Pub. Defender, 197 N.J. 180 (2008)

NJ: Underlying criminal defense

Student Contributor: Rachel Vincent

Facts: Former client whose guilty plea was set aside, is suing attorney, a public defender because attorney failed to apprise him of immigration consequences of entering a guilty plea. Plaintiff was born in Trinidad and Tobago and came to the United States when he was six years old. In 2000, he had a public dispute with his girlfriend and was indicted. The attorney assigned to represent plaintiff plead him guilty to third-degree aggravated assault. Thereafter, the Immigration and Naturalization Service (INS) informed plaintiff that his plea made him deportable. Plaintiff tried to withdraw his guilty plea but the motion was denied because the effect of a plea on a plaintiff’s immigration status was a collateral consequence and could not support plaintiff’s request to withdraw his guilty please. Plaintiff filed a petition for post-conviction relief, which was granted. In 2004 plaintiff served a tort claim notice stating that he intended to seek damages because of defendant’s negligent legal advice. The complaint was filed in 2005. Defendants moved for summary judgment, arguing that the plaintiff failed to serve his notice of claim before the ninetieth day after accrual of the cause of action and that action accrued when INS contacted plaintiff. Plaintiff argues that the action did not accrue until the post conviction relief (PCR) judge granted relief. Trial court dismissed the action, finding that the statute of limitations had expired. Defendant appeals.

Issue: When does 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?

Ruling: Legal malpractice action stemming from ineffective assistance of counsel in criminal proceeding began to run on date on which client-received relief through post conviction proceedings. Statute of limitations does not begin to run until the defendant receives relief in the form of exoneration.

Lesson: In cases arising from underlying criminal defense, the statute of limitations for legal malpractice does not begin to run until the post conviction relief is received. 

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Posted in: New Jersey