JEFFREY MARRERO, ET AL. VS. HOWARD FEINTUCH, ESQUIRE, ET AL.
A-5879-09T3 01-25-11
We reviewed an order quashing a subpoena for deposition testimony in this professional negligence action against criminal defense counsel. Plaintiff's conviction was reversed on appeal and the State declined to pursue retrial. Defendants anticipated the proffered witness's testimony would challenge plaintiff's alibi and possibly implicate him in the criminal offense, disproving the claimed negligent representation.
We settled a question first discussed in McKnight v. Office of Pub. Defender, 397 N.J. Super. 265, 267 (App. Div. 2007), rev'd., 197 N.J. 180 (2008), by holding a plaintiff need not prove actual innocence of criminal charges as a prerequisite to pursue legal malpractice claims against former criminal defense counsel. However, we concluded this would not necessarily preclude defendants' pursuit of evidence relevant to defend the malpractice claims. In view of the sweeping nature of our discovery rules designed to ensure, with few exceptions, the ability to obtain all relevant facts before trial, we reversed the order quashing the subpoena as unwarranted, representing a misguided exercise of discretion.
01-24-11 PAUL PORRECA V. CITY OF MILLVILLE A-1185-09T1
We address whether plaintiff is entitled to a counsel fee award pursuant to Rule 4:42-9(a)(2) ("fund in court") following settlement of his prerogative writs litigation seeking watchdog relief from the City, where the agreement did not mention attorney's fees. We hold plaintiff has a viable claim for such fees under Henderson v. Camden County Municipal Utilities Authority, 176 N.J. 554 (2003), because he obtained "a tangible economic benefit" for the taxpayers. We view this Rule as encompassing a two-step process: (1) the court must determine as a matter of law whether plaintiff is entitled to seek such award under the Rule and (2) if plaintiff has met the threshold, the court has the discretion to award the amount, if any, it concludes is a reasonable fee under the totality of the facts.
We also decline to engraft the bright-line federal rule that a prevailing party's claim for such fees will survive unless specifically and expressly waived in the settlement agreement to a counsel fee request not premised on a fee- shifting statute.We reverse and remand.
