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March 3, 2011

A New Jersey appellate court in the case of Marreno v. Feintuch, has recently ruled that a criminal defense attorney who was sued by a former client for malpractice may attack the innocence of his client to show a lack of proximate cause.
The attorney represented his client in a criminal trial stemming from a robbery at knifepoint. The defense in the criminal action hinged on the accused’s girlfriend’s testimony that he could not have committed the crime a mile and a half away from his home because he had been on the phone with her just before the accident. At the conclusion of trial, the jury returned a conviction for armed robbery. Consequently, the accused brought a malpractice claim against his attorney claiming that the attorney was negligent in, among other things, failing to present phone records corroborating his girlfriend’s testimony. 
During the malpractice litigation, the defendant’s attorney attempted to subpoena a witness who lived on the same block as the crime scene, in attempting to show that the accused could have been at the witness’s home during the disputed phone call. The judge granted the plaintiff’s motion to quash the subpoena ruling that the defendant could not use the “suit-within-a-suit” defense and that the plaintiff’s actual guilt or innocence was irrelevant to the malpractice claim. On appeal however, the Appellate Division disagreed. In ruling for the defendant, the Court ruled that the plaintiff’s guilt could be attacked in the malpractice suit. The Panel said that proof of innocence is not a prerequisite to suing one’s former criminal defense attorney for negligence, but it is relevant. In ruling this way, the Court essentially allowed the defendant to attack the plaintiff’s innocence in showing that if he was indeed guilty, the time he spent in prison was not caused by the defendant’s negligence, but by the plaintiff’s criminal conduct.
The ruling described above is instructive to all who handle malpractice claims involving criminal defense attorneys.
  • Claims professionals should consider alternative defenses rather than traditional means for defending a claim of negligent representation. In the above case, the defense chose not to focus on the alleged beach of the duty he owed to his client, but attacked the proximate cause of the plaintiff’s damages.


  • Privilege rules do not apply to attorneys who are sued by their clients for malpractice. The Model Rules of Professional Conduct Rule 1.6 states that “a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to establish a . . . defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”

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