I'll start by stating my conclusion:  I think Stern's office is trying to collect their bill and Nacchio, sitting in jail, does not want to pay it.  After all, he paid a lot already and he's sitting in jail, so why should he pay more.  It's an article of faith among attorneys that the surest way to generate a malpractice suit is to sue your (losing) client for his unpaid bill.  I also suspect that Nacchio and Stern's firm tried to work it out, but finding underwear and in-room movies on your legal bill is the kind of thing that will set any client, particularly an incarcerated one, over the edge.  Like I said a couple weeks ago on this site about Charlie Sheen and his egregious behavior being a way of renegotiating his contract (note, too, that the most recent reports have been he and the producers are deep in negotiating a new deal for his services), I think this is Nacchio's way of cutting down on his bill.  Nacchio hired a pretty good firm to represent him;  they are experienced in large-value personal injury and malpractice cases.

Fairness and sophistication.
New Jersey holds a pretty tight leash on attorneys and their fee agreements, and does scrutinize both the retainer agreements and the bills themselves for fairness.  

From a reference book:  "An attorney's unprofessional conduct is a factor to be considered where the attorney's fee is to be determined on a quantum meruit basis. See Straubinger v. Schmitt, 348 N.J. Super. 494, 500, 504 (App. Div. 2002)."

From the Straubinger case:

It is fairly well established that an attorney's violation of the Rules of Professional Conduct (RPC) in connection with the representation of a client may jeopardize that attorney's right to collect fees for services rendered. In Cohen v. Radio-Electronics Officers Union, 146 N.J. 140, 155-56 (1996), the Supreme Court stated:

[A]n attorney's freedom to contract with a client is subject to the constraints of ethical considerations and [the Supreme Court's] supervision....
Agreements between attorneys and clients concerning the client-lawyer relationship generally are enforceable, provided that the agreements satisfy both the general requirements for contracts and the special requirements of professional ethics. An otherwise enforceable agreement between an attorney and client would be invalid if it runs afoul of ethical rules governing that relationship.
[citations omitted].

At issue in Cohen was whether a one-year renewable retainer agreement between an attorney and client was enforceable. Supra, 146 N.J. at 144-45. The retainer agreement provided that the client had to give the attorney six-months notice before termination. While the Court determined the agreement burdened the right of the client to discharge the attorney, the Court held that the attorney was entitled to recover in quantum meruit for the reasonable value of the services provided. Id. at 164.

The retainer agreement in the Cohen case, 146 N.J. 140 (1996) was one where the union hired the attorney for certain rate but required six months' notice to terminate the attorney's services.  This agreement could have left the client union quite susceptible to being milked by an unscrupulous attorney - not that such actually happened because, as the Supreme Court noted, the union was a sophisticated client that bargained for a reduced hourly rate in exchange for a longer termination period.  As a contract it would have been unremarkable but, because it was a retainer agreement for legal services, it was subject to heightened scrutiny by the courts.

That's the way NJ handles these things - they scrutinize retainer agreements for fairness and usually resolve a tie in favor of the client because they consider attorneys to be professionals and fiduciaries, not businessmen. Stern's firm will surely call Nacchio a sophisticated client, but that's in matters of business.  In matters of being a criminal defendant - not so much.  

So, I suspect, charging underwear and in-room movies to the client bill is unacceptable.  What else will be unacceptable, I dunno.  Whether the court ever gets to rule on that, though, is another matter.  Nacchio may have been too late.

Statute of Limitations
I wonder whether Nacchio will be found to have been too late.  New Jersey is a "filing" state - a critical date for statute of limitations purposes is when the complaint is filed with the court.  The other critical date is when the client became aware of the alleged harm heclaims to have suffered and that it may have been related to the legal representation.  

McGrogan v. Till, 167 N.J. 414 (2001) is a leading case on the statute of limitations for legal malpractice actions, and it holds that the statute is six years.   (Please note that there have been within the last year or two discussions going on to make the general statute of limitations for all legal malpractice cases two years.  I don't know where/how those discussions have progressed.)

In short, McGrogan was represented first by Till when McGrogan was alleged to have participated in a municipal bribery scheme.  Till, allegedly, had a policy of not allowing clients to cooperate with the government under any circumstances, which McGrogan alleged, led directly to his indictment, one of the injuries he complained of.  As the case wore on, he wrote a letter to the court in the spring of 1991 (25 months after his indictment) in which he stated he felt he'd been harmed by Till's representation.  While McGrogan filed his complaint more than 6 years after the first event he alleged was malpractice, the indictment, he also was more than 6 years after the last event, the letter.  Since the general rule is that a malpractice claim does not accrue (and the clock does not start running) until the client is aware he has been harmed by the alleged malpractice.  The letter would have evinced that awareness, even though the conviction did not become final (upon sentencing) for over a year more.  He filed more than 6 years after the letter, but less than six years after the conviction was final.  But, he was too late, according to Till.  The Court agreed with Till.

Do not be led astray by the New Jersey Appellate Division's earlier opinion in this same case, 327 N.J. Super. 595;  it was one of those cases where the court reached the "correct" result (here, dismissing the case) but for the "wrong" reasons.  There, they said the length of the statute depended on the kind of injury alleged, picked a two-year statute, and made a potential mishmosh out of the law.  And they said the malpractice case had accrued in 1989 when McGrogan was indicted, a conclusion which the Supreme Court did not accept.  If the Supreme Court had accepted that, then McGrogan's case for malpractice would have accrued and the statute expired before he ever wrote the letter to the Court complaining about Till, well over a year before his conviction became final.  

Given the length of the proceedings in Nacchio's case, calculating when the statute of limitations began to run for which claim will be a difficult matter, complicated by the question of whether the inevitable delays caused by appeals will toll the statute or not and complicated further by the en banc reversal in the Tenth Circuit on the expert witness issue.  I can't predict or opine as to whether or how this will shake out.  I don't think anyone can - it's going to be too factually-sensitive.

"Guilty as hell."
In McGrogan v. Till, though they devoted a full third of their opinion to kicking around the question, the Appellate Divison explicitly declined to rule on whether exoneration was required for a criminal defendant to sue his lawyer for malpractice.  

But, given cases in analogous contexts, I suspect the defense to alleged legal malpractice called "he was guilty as hell" will have some substantial force.  Anyone who failed to make the argument would themselves be guilty of malpractice.  In the context of suing criminal defense counsel for malpractice, "he was guilty as hell" is just an outgrowth of the doctrine of tort law which says that if there was negligence but it didn't proximately cause the harm complained of, the negligent person is not liable.  Relatively recent cases like Heck v. Humphrey, 512 U.S. 477, 486-487 (1994), require a person's conviction to be nullified (by reversal on appeal, pardon, calling into question through habeas) as a prerequisite to maintaining a civil rights action for wrongs related to the arrest and conviction.  I would suspect the same general principle would obtain in the legal malpractice context - that a person convicted would have to have his conviction nullified to succeed in suing his allegedly malpracticing attorney for the malpractice which landed him in prison.  Even though it is dicta, the discussion in McGrogan seems to put a real hurt on Nacchio's case because it indicates the direction the courts were/are going.

I suppose I need to read it, but on its face, it seems an absurd decision.

Rule 26 of the FRCivilP requires written reports for experts who will be called at trial.

It's interesting that the criminal procedure does not mirror this requirement, but it appears it does not.

Considering what they charged him that's not hard to understand. Whether he received an adequate defense, I dunno.

 But these lawyers  acted like piggies when they had  a big one.  Even when they have a small one legal time and cour costs are one thing, and expenses another.