By David Gialanella, From New Jersey Law Journal

The New Jersey Supreme Court won’t weigh in on a case in which a client’s guilty plea foreclosed a legal malpractice claim against a lawyer who advised the client to cooperate with law enforcement—despite lacking criminal law experience.

It’s a final victory for attorney Joseph Mecca after years of litigation, but the case brings to bear the question of when a lawyer—particularly a solo or general practitioner—must demur in offering advice outside his area of expertise.

“It’s not uncommon at all” for a lawyer to get a client’s call seeking advice outside his or her wheelhouse, said Bennett Wasserman, a legal malpractice plaintiffs lawyer at Davis, Saperstein & Salomon in Teaneck and vice president of consultancy legalmalpractice.com.

“From a practice point of view, I would urge the general practitioner … to refer it out—Don’t mess with it,” Wasserman said. “I think a client would be very grateful if the lawyer picked up the phone and said, ‘I’m going to get you someone who really knows what they’re talking about.’”

It “doesn’t hurt” to have a criminal defense lawyer on speed dial if a client calls from behind bars, said Point Pleasant solo John Menzel, who handles DWI defense and previously chaired the New Jersey State Bar Association’s Municipal Court Practice Section.

“Lawyers think that they have to have an answer—If you don’t have an answer, say, ‘I don’t know,’” Menzel said.

Mecca, a West Paterson solo, was contacted in 1994 by an existing client, Andrew Totoli, who was arrested after his auto body shop was raided by federal agents in connection with a narcotics investigation, according to an appeals court’s decision earlier this year.

Mecca had previously advised Totoli on business-related issues but had no experience with significant criminal matters. He met with Totoli while the latter was in custody, and advised him to cooperate. Totoli claimed he had no knowledge of the alleged drug transactions, the opinion said.

Mecca, reached by phone, said he consulted with a criminal defense lawyer before meeting with Totoli, and warned Totoli that he was not himself a criminal practitioner.

Later, a different attorney negotiated an agreement whereby Totoli provided testimony against co-defendants and pleaded guilty to a conspiracy charge. Totoli was sentenced to two years’ imprisonment and a five-year probation term, the opinion said.

Totoli first sued in 2000, claiming that his custodial sentence was based at least in part on information he provided to law enforcement at Mecca’s recommendation. The matter was stayed and later withdrawn, though the statute of limitations was preserved. Totoli sued again in 2013, claiming Mecca’s advice was negligent, and that he would have avoided prison had he not cooperated.

Essex County Superior Court Judge James Rothschild Jr. dismissed the case, holding that Totoli was required to show, as a matter of law, that he was exonerated in order to make out a claim for legal malpractice in a criminal case.

On Jan. 20, a three-judge Appellate Division panel affirmed.

“The issue in this case is whether [the client] obtained some form of exoneration of his guilty plea so as to permit his legal malpractice claim to proceed,” the court said in Totoli v. Mecca. “It is undisputed that no exoneration occurred and therefore, plaintiff’s legal malpractice claim is barred as a matter of law.”

“Although plaintiff is correct that he need not show ‘actual innocence’ for his legal malpractice claim to accrue, he must still receive a ‘disposition more beneficial to [him] than the original judgment,’” the court added, quoting precedents. “This did not occur.”

In an order dated April 24 and made public four days later, the Supreme Court denied Totoli’s petition for certification.

Mecca, who was pro se, said he’s “very satisfied and relieved that a very sad chapter … has come to a conclusion.”

“You never know, as a sole practitioner … what’s around the corner if you spend a long time representing somebody and doing what you feel is right,” Mecca said, adding that this experience and others taught him to thoroughly document communications with clients. “I think I, like a lot of attorneys, are becoming a lot more defensive.”

Mecca added that Totoli—a former friend—was “trying to find a scapegoat” for his conviction and should not have been able to obtain an affidavit of merit on what he called a meritless claim.

Totoli’s lawyer, Cynthia Walters of Budd Larner in Short Hills, didn’t return a call seeking comment.

Menzel said “the advice that lawyers have to give when they get a call like [the one Mecca received from Totoli] is, ‘Say nothing,’” calling that advice “pretty fundamental stuff.”

But, Menzel warned, clients who follow that advice shouldn’t expect a kind response from police.

“When [officers] get out of the academy, they expect people will do what they tell them to do,” Menzel said. “It’s a combination of violating their expectations and frustrating their purposes that evokes a very negative response.”

Wasserman said faulty advice, even if it doesn’t amount to malpractice, may qualify as ineffective assistance of counsel.

He noted that guilty pleas and other convictions are especially consequential to immigrants, who may be deported as a result, and pointed to 2010’s Padilla v. Kentucky, where the U.S. Supreme Court said a defense attorney’s failure to apprise an immigrant of the deportation consequence of a guilty plea permits withdrawal of the plea.

IMAGE: Bennett Wasserman of Davis, Saperstein & Salomon Carmen Natale

For more on this story go to: http://www.njlawjournal.com/id=1202725688509/Malpractice-Case-Shows-Dangers-of-Giving-Legal-Advice#ixzz3ZSsF3EXs