Cop a Plea. Then Sue Your Lawyer: A New Spin on "Settle and Sue"
Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001)
Student Contributor: Melissa Goldberg
NJ Underlying Criminal Defense
Facts: Plaintiff, a public accountant, sued his attorney for legal malpractice alleging his professional negligence caused him to plead guilty to a federal misdemeanor charge for refusing to give information to the IRS in a tax investigation. Plaintiff contended that his attorney failed to keep him properly informed about the potential of a criminal investigation and failed to arrange a meeting with the IRS where the government could have been persuaded to either grant him immunity or decide not to prosecute.
Issue: Does an unimpeached guilty plea in a criminal proceeding bar recovery in a legal malpractice action?
Ruling: Yes, Plaintiff cannot seek in a civil action to renounce his federal conviction, or seek money damages for a wrongful conviction based on his guilty plea which he never otherwise attacked, since:
1) He unconditionally pled guilty to a criminal offense committed before representation was commenced; and
2) It would undermine the guilty plea if a defendant were allowed to argue that no prosecution would have occurred if his attorney had used different tactics.
Lesson: Public policy does not permit defendants who have been convicted of a criminal offense from profiting from their illegal conduct by shifting blame to their defense attorneys.
I agree with the court's holding here. Before pleading guilty, the accused is asked if he understands what a guilty plea means, and whether he is pleading guilty because he truly is guilty, or is doing so through advice of his attorney. As such, when one pleads guilty, they are doing so because the judge is convinced they understand the consequences, and they are actually guilty of the charge. The client should not be able to later argue that it was his attorney's fault, resulting in an action for legal malpractice. Any such concerns should be made prior to pleading guilty.
I agree with this case because I do not think people should be allowed to benefit from their own acts. I believe in the criminal context, legal malpractice should be remedied in the form of an appeal and not economic benefit.
I find it interesting how heavy the burden is on a criminal defendant to prove malpractice on the part of their attorney. It's funny that on one hand, to prove a defendant guilty of a crime, a prosecutor's burden is heavy and a defendant has all the rights; however, once that heavy burden is met by the prosecutor, the criminal defendant then bears the heavy burden of proving legal malpractice on behalf of their own attorney. Basically it seems as if a criminal has all the rights prior to a guilty conviction, but once the prosecutor meets that burden, the defendant is labeled as guilty and the defendant cannot prove any malpractice by the attorney until the stigma of that guilty label has been removed.
In response to Ms. Deaner, I was not trying to imply that a guilty defendant bears the burden of proving malpractice. However, I make the point that if a guilty defendant is trying to prove his innocence by shifting the blame on the attorney, I do believe that at that point, the Defendant should bear the burden of proving the malpractice and his innocence. This is not unlike an appeal which a Defendant has the option of filing. When filing an appeal, it is up to the Defendant to prove his case.