Being Guilty Matters

There are two take away points to be learned from Marrero v. Feintuch, that someone in a legal malpractice/ professional negligence case need not prove actual innocence of criminal charges as a prerequisite to pursue his claims against his former criminal defense counsel but also his guilt may be considered relevant to the attorneys' defense.

This matter involves Jeffrey Marrero and Francisco Marrero (Marrero) 's professional negligence action against Defendant Attorneys Howard Feintuch, his law firm Feintuch, Porwich & Feintuch and law partners, Philip Feintuch and Alan Porwich. Plaintiffs' complaint sought repayment of the fees and costs associated with the defense of Jeffrey Marrero, who was tried and convicted by a jury of armed robbery but then it was overturned on appeal. Marrero alleged defendants failed to introduce evidence supporting his alibi defense, which he maintained would have defeated prosecution in the first instance.

Defendant attorneys were hired as Marrero's criminal defense counsel for a 2005 knife-point robbery. Marrero's picture was chosen from a photographic array. At trial, when asked whether he saw the perpetrator in the courtroom, the alleged person who was robbed said, "He's not here." When asked a second time to find the man who robbed him in the courtroom, the alleged person who was robbed chose a member of the jury.

Another witness was equivocal as well when faced with the photo array and the in-court testimony. Finally Marrero's girlfriend Christine Vuolo gave him an alibi that he was on the phone during the robbery though this was uncorroborated from phone records. However, those records would have made it highly unlikely that he was the perpetrator Ultimately, the jury found Marrero guilty and he was sentenced to five years imprisonment but that was overturned on appeal because of judicial errors. Finally, Marrero was released from prison after serving one year and eight months of his sentence.

Once it was initiated, Marrero's legal malpractice action alleged defendant attorneys failed to investigate or properly interview witnesses, neglected to support Marrero's alibi by introducing the certified telephone records to show Marrero was speaking to his girl friend about the time the robbery occurred, undermined Marrero's alibi during summation by improperly suggesting Marrero may have been talking to Vuolo on a cellular telephone and improperly cross-examined a witness, allowing him to reiterate his out-of-court identification despite his inability to identify Marrero during trial.

Defendant attorneys argued that "the role a plaintiff's guilt or innocence should play in a criminal legal malpractice action" is not clearly decided by New Jersey case law. Defendants further assert that Marrero's guilt is relevant to whether their actions were negligent. Additionally, defendants assert the trial court erred by incorrectly concluding the "suit within a suit" approach was inapplicable to the legal negligence trial.

The court decided its case based on another, Alampi v. Russo, where they affirmed the summary judgment dismissal of plaintiff's action, concluding the plaintiff's unimpeached guilty plea in the criminal matter barred recovery of damages against his attorneys for a wrongful conviction. 345 N.J.Super. 360, 361, 785 A.2d 65 (App.Div.2001), They did not specifically reach the question of whether evidence of guilt of the charged criminal offense was relevant or necessary to present in the malpractice matter, but stated in dicta that the issue abides a case-by-case review "eschew[ing] a 'bright-line' rule requiring exoneration in all cases." Id. at 371, 785 A.2d 65.

The court in this case also based their opinion on one more case, McKnight v. Office of Pub. Defender, where 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." 197 N.J. 180, 182, 962 A.2d 482 (2008). 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...."

Based on those cases, the court concluded that a plaintiff need not prove actual innocence of criminal charges as a prerequisite to pursue legal malpractice claims against his former criminal defense counsel and that his guilt may be considered relevant to the attorneys' defense.

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