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Is There A Malpractice Action a-Comin’?

by Carolyn Elefant on February 22, 2005 · 4 comments

in Criminal Law, Practice & Policy, Ethics & Malpractice Issues, Mistakes/What NOT To Do

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Many attorneys who practice criminal law believe that their malpractice exposure is minimal.  After all, it’s hard to show that it’s more likely than not that a client would have avoided conviction but for the attorney’s negligence – it only because it’s so hard to predict what juries might do.  But after reading this article, Man Deserves new Trial Because Lawyers Forced Him to Plead Guilty, zwire.com (2/19/05), I’m thinking there may be a legal malpractice action coming for the criminal defense attorneys involved.

The article describes the circumstances that lead a judge to vacate a criminal defendant’s guilty plea:

Last November, the state Superior Court granted a new trial for John Joseph Jescavage Jr., 40, formerly of Brookhaven, Delaware County.  Jescavage, who has been in prison for less than five years, appealed his guilty plea. He alleges that trial lawyers, Thomas Cometa and Joseph Yeager, coerced him.  He claimed he was pressured into pleading guilty to aggravated assault and aggravated indecent assault on Oct. 23, 2000, when Cometa and Yeager threatened to withdraw as his lawyers the night before his trial was scheduled to start.

Cometa and Yeager threatened not to represent Jescavage due to an unpaid balance of $10,000 to $15,000 of a $25,000 fee, according to the Superior Court’s ruling…

The state appellate court agreed with Jescavage, ruling his guilty plea was ineffective and not voluntary. The court ruling said the threat by Cometa and Yeager should have been raised when he pleaded guilty.

These attorneys had a conflict – their desire to obtain payment for the case apparently  compromised their judgment and lead them to a hard sell of the plea bargain.  That neglect of duty may be just enough to bring a potential malpractice case over the threshhold.

There’s much these lawyers should have done differently.  First, the lawyers should have ensured that their client retained sufficient funds in the trust account to bring the case to trial.   Second, they should have demanded  that the client replenish the trust well in advance of trial to avoid a midnight effort to withdraw.  Third, at a minimum, the lawyers should have made an attempt to file a motion to withdraw with the court to document the payment problems.  It’s possible, though not likely, that the court would have allowed them to pull out.  Fourth, the lawyers should have committed their explanation of the guilty plea to writing and obtained the client’s written agreement.  It may be that payment notwithstanding, that the plea deal was the best the client could do.  But the merits of the decision are now lost in the controversy over the compulsory nature of the plea agreement.

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/02/will_high_roads.html Legal Blog Watch

    WILL HIGH ROADS NOT TAKEN LEAD TO MALPRACTICE?

    After reading reports of the circumstances that lead a judge to vacate a criminal defendant’s guilty plea, Carolyn Elefant examines the high roads not taken by two attorneys who she thinks had a clear ethical conflict:

  • http://legalblogwatch.typepad.com/legal_blog_watch/2005/02/will_high_roads.html Legal Blog Watch

    WILL HIGH ROADS NOT TAKEN LEAD TO MALPRACTICE?

    After reading reports of the circumstances that lead a judge to vacate a criminal defendant’s guilty plea, Carolyn Elefant examines the high roads not taken by two attorneys who she thinks had a clear ethical conflict:

  • Donna Thompson-Schneider

    I’ve always thought there should be different standards of proof for malpractice claims arising out of a breach of fiduciary duty and those arising out of negligence.
    It’s one thing to make a mistake. It’s an entirely different thing to take advantage of your client’s circumstances to their detriment in an effort to further your own interests.
    I do agree that the big error here was not getting more money up front or dealing with the fee issue sooner.

  • Donna Thompson-Schneider

    I’ve always thought there should be different standards of proof for malpractice claims arising out of a breach of fiduciary duty and those arising out of negligence.
    It’s one thing to make a mistake. It’s an entirely different thing to take advantage of your client’s circumstances to their detriment in an effort to further your own interests.
    I do agree that the big error here was not getting more money up front or dealing with the fee issue sooner.

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