Metropolitan News-Enterprise


Thursday, February 20, 2003


Page 4


Actual Innocence Not Required for Defendant’s Fee Suit, C.A. Rules


By a MetNews Staff Writer


A convicted criminal defendant does not have to allege that he was actually innocent to press a suit against his lawyer over fees, this district’s Court of Appeal ruled yesterday.

The holding contrasts with recent court rulings that require defendants who believe their counsel’s incompetence or mistakes got them convicted to plead actual innocence to state a legal malpractice action.

Unlike malpractice suits, Justice Earl Johnson Jr. wrote for Div. Seven, breach of contract and fraud suits over legal fees involve different policy considerations that do not require the high standards and rare findings of judicial exoneration after conviction.

The ruling comes in a lawsuit arising from an extortion plot against Westlake Village attorney Ed Masry, who gained fame as the employer of toxic spills muckraker Erin Brokovich, who was later portrayed in a movie verison of her career by Julia Roberts.

Another lawyer, John J. Reiner, was charged with attempting to extort more than $300,000 from Masry by threatening to circulate rumors that Masry and Brokovich had a sexual relationship.

Reiner hired Gary Lincenberg and Vincent J. Marella, and their Century City litigation firm, Bird, Marella, Boxer & Wolpert, to defend him. He later fired them and got other lawyers, but was ultimately convicted

He then sued Lincenberg and Marella over their billing practices.

The lawyers and their firm lost their bid in Los Angeles Superior Court to get the suit thrown out, then appealed.

Reiner did not allege he was actually innocent and he renounced any claim of malpractice. But he alleged that the firm’s practice of block billing, rather than itemizing and billing for each task performed, was a breach of fiduciary duty, along with charging what he claimed was an unconscionable fee. He also alleged that his lawyers breached their retainer agreement by padding their time, overcharging, and failing to use paralegals for tasks that did not require attorneys.

The lawyers and their firm demurred, asserting the case was governed by the 1998 state Supreme Court ruling in Wiley v. County of San Diego. The court in Wiley ruled that actual innocence and postconviction exoneration is necessary to sustain a malpractice action.

“[T]he notion of paying damages to a plaintiff who actually committed the criminal offense solely because a lawyer negligently failed to secure an acquittal is of questionable public policy and is contrary to the intuitive response that damages should only be awarded to a person who is truly free from any criminal involvement,” the high court said in Wiley.

It is different in a fraud and contract action, Johnson said, even one against the criminal defense lawyer. For one thing, he said, even a client who was acquitted at trial could be stuck with bills he believes are unlawful.

Also, “[i]n litigation over a fee dispute there is no difficulty in quantifying damages for a wrongful conviction or a longer prison sentence and there is no problem of applying a standard of proof within a standard of proof,” Johnson said. “A judgment for the client in a fee dispute is not inconsistent with a judgment for the People in the criminal case. And, there is no duplication of effort since a fee dispute obviously cannot be resolved through postconviction relief.”

In Reiner’s case, the justice said, the complaint goes to the quantity of work performed for the price, not the quality of work.

He acknowledged that some of Reiner’s allegations, like manufacturing work, grossly overcharging, and using paralegals instead of lawyers, did touch on quality of work. Those allegations were ordered stricken.

Attorney Mary Catherine M. Bohen of Musick, Peeler and Garrett, who represented Lincenberg, Marella and their firm, noted that  the court assumed the alegations were true for purposes of deciding to grant the writ.

“The allegations are false,” she said, “and this office looks forward to proving that at trial.”

Bohen said Reiner also sued the lawyers who took his criminal case to trial.

Reiner’s attorneys, Joseph J.M. Lange and Jeffrey A. Koncius, could not be reached for comment.

The case is Bird, Marella, Boxer & Wolpert v. Superior Court, B162059


Copyright 2003, Metropolitan News Company