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The New Jersey Superior Court, Appellate Division, has added a new wrinkle to its evolving case law on the importance of innocence in a legal malpractice case involving a criminal defendant.  In Marrero v. Feintuch, 418 N.J.Super. 48, 11 A.3d 891 (N.J. Super. App. 2011), Judge Marie E. Lihotz wrote 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.”  However, the court held that the guilt or innocence may be relevant to the legal malpractice defense, and the ability of the plaintiff to prevail in the necessary “suit within a suit” analysis.  Although many courts (including Pennsylvania’s) have required a showing of actual innocence before a criminal defendant can maintain a malpractice action, New Jersey continues to eschew such a requirement.

The decision of the Appellate Division can be found at: http://scholar.google.com/scholar_case?case=3061756539907056555&hl=en&as_sdt=2&as_vis=1&oi=scholarr –Josh J.T. Byrne, Esquire