Here is the Correct Way to Sue Your Criminal Defense Attorney – McKnight v. OPD

In yesterday’s Supreme Court decision in McKnight v. Public Defender, the Justices established the correct procedure to be utilized by defendants who wish to file malpractice suits against their criminal defense attorneys. In McKnight, the defendant, a foreign national, was indicted for an act of domestic violence. While represented by the public defender, he entered a plea of guilty and was sentenced to prison. As a result of his conviction, the United States sought to deport him, although his native country refused to take him back. Thereafter, the defendant sought post-conviction relief, claiming that he had not been informed of the collateral consequence of deportation as a part of his conviction. The post-conviction relief petition was granted and the defendant ultimately resolved his case anew by pleading guilty to a disorderly persons’ level offense. By this time, the defendant had served half of his 3-year sentence.

Following the conclusion of his case, the defendant filed a notice of tort claim and a law suit against the Office of the Public Defender, claiming negligence and legal malpractice. The public defender claimed that the complaint and notice of tort claim had been filed years out of time. The Supreme Court ruled, however, that in a legal malpractice action brought by a criminal defendant against the attorney who represented him, the claim for malpractice does not accrue and the statute of limitations does not begin to run until the criminal defendant receives relief through some form of exoneration. Exoneration may consist of vacating a guilty plea and dismissal of the charges, entry of judgment on a lesser offense after spending a substantial time in custody following conviction for a greater offense, or any other disposition more beneficial than the original judgment. The criminal 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 other such relief.

As a result of this case, the Justices will also consider a change to the Rules of Court that will require a notice to be send to the subject attorney when a claim of ineffective assistance of counsel has been made in a post-conviction relief petition.

Download a copy of State v. McKnight.

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