The Confess and Sue Method

In a previous post we recently discussed legal malpractice claims arising from an underlying settlement. In such “settle and sue” cases, some civil litigants are driven by buyer’s remorse, doubt, or other regret and conclude that they’ve given too much or accepted too little. Eventually, they make a “u-turn” and point the finger at their former attorney. A recent decision proves that similar regret may arise in the criminal context as well. We’ll call it the “confess and sue” malpractice claim.

In Cortez v. Gindhart, et. al., 2014 N.J. Super. LEXIS 71 (May 21, 2014), a criminal defendant employed his own settle and sue method by filing a malpractice claim against his former attorney following a guilty plea. The client, who owned a tax preparation business, retained an attorney to represent him an IRS investigation. According to the client, he repeatedly asked his attorney to negotiate a plea agreement but the attorney refused. Allegedly, the government sent offers to the attorney of 30-37 months incarceration but the attorney rejected this offer on behalf of the client.

Eventually, the client was indicted and the attorney withdrew from the case. The client retained a new attorney and entered into a plea with the government in exchange for a 37-month prison term plus about $450,000 in restitution. Following the plea, the client sued his former counsel and alleged that the attorney failed to negotiate a plea agreement on his behalf and that as a result he was deprived of an opportunity to accept a more favorable plea.

The New Jersey Superior Court entered summary judgment in favor of the attorney. On appeal, the appellate court affirmed. Noting that an attorney is not an insurer, the appellate court found that the client failed to demonstrate any damages caused by the attorney’s alleged negligence. Specifically, the court found that there was no evidence that the government provided a more favorable offer than what was ultimately accepted. The court highlighted the fact that the prior offer was within the range of the client’s ultimate sentence.

This case provides another example of unhappy clients who are willing to sue their former attorneys despite the difficulties of proving causation in the settle and sue scenario. We now know that criminal practitioners face similar risks. In all scenarios, attorneys should clearly communicate and document all settlement/plea offers and ensure that the client is well apprised of the options moving forward. This may not shield the attorney from lawsuits but will serve as an important defense if needed.

The court made an important point – attorneys are not insurers. Nonetheless, many clients see it differently and consider their counsel to be guarantors of a favorable result. The professional malpractice community must be aware of this risk and take steps to temper expectations at all times.