New Jersey Justice Jaynee LaVecchia. Photo by Carmen Natale/ALM

The New Jersey Supreme Court has ruled that a legal malpractice lawsuit against the Office of the Public Defender was properly dismissed for failure to comply with the provisions of the Tort Claims Act.

The justices, in a 6-1 ruling, said summary judgment was correctly granted to the OPD in a malpractice claim brought by Antonio Chaparro Nieves, whose sexual assault conviction was overturned after he spent 12 years in prison.

As a result of the ruling, anyone wishing to sue the public defender for legal malpractice must comply with the strict timetable of the TCA, which requires a notice to be filed 90 days after the claim is accrued. And the ruling gives the state an opportunity to trip up litigants, since plaintiffs lawyers sometimes find the TCA's provisions vexing.

A trial judge had denied a motion to dismiss Nieves' malpractice claim, but the Appellate Division reversed in December 2018. Nieves' attorney, Thomas Flinn, had argued the state's position that the OPD is subject to the TCA because of the need to protect the public's finances conflicts with a provision of the law that defendants are to be represented without regard to the resources required to mount an effective defense.

Attorneys serving under the public defender, whether full-time staff attorneys or contracted pool attorneys, meet the definition of an OPD employee for TCA purposes, and have been treated as public employees in previous cases, Justice Jaynee LaVecchia wrote for the court. The OPD is an office within the executive branch, whose head is appointed by the governor with the advice and consent of the state Senate, LaVecchia said. It relies on state funding appropriated through the annual state budget.

"Consideration of those facts leaves no room to doubt that the OPD meets the TCA's definition of a public entity," LaVecchia wrote for the court.

Nieves collected over $600,000 in damages from the state under the Mistaken Imprisonment Act after he was granted postconviction relief for ineffective assistance of counsel at trial. He then sued the OPD and attorney Peter Adolf over the representation he originally received.

The justices also held that the TCA limits damages for pain and suffering against a public entity except where a claimant suffered permanent loss of a bodily function, or permanent disfigurement or dismemberment where the medical costs top $3,600. The limit does not apply to economic damages, the court said. 

Flinn, of Garrity, Graham, Murphy, Garofalo & Flinn in East Hanover, did not respond to requests for comment. 

Assistant Attorney General Daniel Vannella argued for the OPD and Adolf. The attorney general's office and the OPD did not respond to requests for comment. 

The ruling will block some meritorious malpractice cases, since the TCA requires a prospective plaintiff to submit a notice of claim within 90 days after the claim accrues, said Thaddeus Mikulski Jr., a Pennington solo practitioner who represents legal malpractice plaintiffs. That window is far shorter than the six-year statute of limitations on legal malpractice suits against private attorneys, Mikulski said.

Unlike a personal injury case against a public entity, where the claim accrues on the date of a car crash or a slip-and-fall accident, the issue of when a criminal defendant has notice of a potential malpractice claim against a public defender may be unclear, Mikulski said. Criminal defendants are unlikely to contact a malpractice lawyer about negligent representation by a public defender before the 90-day deadline because they often are not legally savvy, he said. 

"The last thing they're thinking about is the Tort Claims Act. Although the statute might require this type of interpretation by the Supreme Court, maybe the Legislature should enact an exemption or revise the statute," Mikulski said. 

But the TCA's limitations on damages are even more important than the timeline issue, said Mikulski. Claims by criminal defendants for loss of liberty will mainly involve emotional distress, but it's unclear whether such damages would be recoverable, he said. 

Another lawyer who files legal malpractice suits, Michael Epstein of the Epstein Law Firm in Rochelle Park, agreed that the limitation on damages imposed under the ruling would deter the filing of legal malpractice suits against the OPD. 

Any change to the application of the TCA to the OPD would need to be made by the Legislature, said Epstein. He added that he's not sure if that would be the right thing to do, although he thinks the $600,000 award to Nieves through the MIA could be insufficient. 

"I think we have to feel bad for the person in terms of compensation. Is that amount of money he got sufficient to lose 12 years of his life? I think most people would say no," Epstein said, adding, "I don't think there's going to be a groundswell of support to get the Legislature to change it."

Nieves was convicted in 2003 of first-degree aggravated sexual assault and third-degree robbery in connection with an attack on an 18-year-old woman in Elizabeth. At the time, Nieves was 48 years old, just over 6 feet tall and weighed 215 pounds, nearly twice as old, and much taller and heavier than the assailant described by the victim, according to the decision.

Nieves filed a motion for a new trial in 2011, citing his public defender's failure at trial to call a construction worker who saw a man fleeing the crime scene. That witness' description of the assailant was consistent with the victim's description and at odds with Nieves' actual appearance, according to the National Registry of Exonerations, a database compiled as a joint venture of several law schools.

A trial court denied the motion, but the Appellate Division reversed that decision. A motion for a new trial was granted in March 2014, and he was released on bond the following October. In November 2014, after a DNA test of the victim's clothing linked the attack to someone else, a judge granted a joint motion by the prosecution and defense to dismiss the charges.

At the Supreme Court, Nieves argued that public defenders are not subject to the TCA because when they represent criminal defendants, they are not engaged in government action. But the court disagreed. 

"The OPD is performing a state function when providing representation for indigent defendants. Although the professional representational duty owed by a public defender is to his or her individual client, public defenders are performing a public function—that of ensuring representation for indigent defendants in criminal matters brought by the State. And the fact that such attorneys are adversaries of other state actors prosecuting the criminal charges does not mean that they lose their state public employee status under the TCA," LaVecchia wrote for the court. 

Justice Barry Albin issued a partial dissent. He agreed with the majority that the TCA applies to legal malpractice claims against public defenders. 

However, he disagreed with the notion that the TCA's limitation on awards for pain and suffering also applies to awards for loss of liberty, which he said is "a distinct species of damages." Neither the TCA nor case law equate pain and suffering damages with loss of liberty damages, Albin said. 

"The majority's overly expansive interpretation of [the TCA] will have unintended negative consequences in cases unrelated to legal malpractice. Indeed, today's decision will likely foreclose persons who are wrongly arrested and imprisoned from recovering damages for their loss of liberty caused by state, county, and municipal actors," Albin said.