Supreme Court of New Jersey Rules Legal Malpractice Claim Not Time Barred

The Supreme Court of New Jersey has ruled that a criminal defendant’s legal malpractice claim was not barred by a one year time limit for filing a notice of claim against a public employee. In Rogers v. Cape May County Office of Public Defenders, a client sued his former attorney for negligently representing him during his criminal proceedings.

At his trial for drug related charges, the client’s judicially assigned attorney attempted to show that the arresting officer could not distinguish the defendant from his brother. The attorney intended to switch the two brothers’ clothing, seating the defendant sit at the back of the courtroom and the brother at counsel’s table. The attorney hoped to examine the police officer to determine if he could correctly identify the defendant. The state intervened before the attorney was able to carry out his plan. However, the defendant admitted to the scheme on cross-examination, which, he argued, damaged his credibility with the jury.

The defendant was convicted and sentenced to 14 years in prison. Six years later the defendant filed a petition for post-conviction relief based on ineffective assistance of counsel. The trial court denied the petition and the client appealed. The appellate court reversed the conviction finding that the “defendant-substitution plan” constituted deficient representation. The appellate court then remanded the case for a new trial.


Almost a year later, the trial judge dismissed the indictment with prejudice. Within a year of the dismissal, but almost two years after the remand, the client filed a notice of claim against the attorney, who was considered a public employee.

In New Jersey, a plaintiff making a claim against a public employee must file a notice of claim within 90 days of accrual of the cause of action, but if extraordinary circumstances exist, no later than one year. In a criminal case the claim accrues upon the “exoneration” of the criminal defendant. The trial court found that the client was exonerated when his conviction was reversed, barring the claim because it was filed more than one year later.

The client appealed and lost in the Court of Appeals. However, the New Jersey Supreme Court accepted the client’s petition for certification and reviewed the Appeals Court decision. The Supreme Court reversed, finding that the client’s claim was not time barred because he was not ‘exonerated’ until the lower court dismissed the indictment. The Court reasoned that the client was still in jeopardy at the time of remand because he was still capable of being convicted following the new trial.

Decision: Rogers v. Cape May County Office of Public Defenders
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