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Legal Malpractice

: New York Attorney Malpractice Blog

Criminal Defense Representation and Legal Malpractice

By (Andrew Lavoott Bluestone)

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Legal malpractice litigation is unique. While the simple fact is that this branch of the law is written by attorneys, is utilized to litigate against attorneys, is judged upon by attorneys, the more complex story is that there are a number of unique rules. One is that a criminal defendant may not sue his attorney absent "actual innocence." There are no lawsuits for bad advice which leads to a conviction.

Sgambelluri v Ironman ;2010 NY Slip Op 08555 ;Decided on November 16, 2010 ;Appellate Division, Second Department sums this rule up nicely: "To succeed on a "cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [the] plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense" (Carmel v Lunney, 70 NY2d 169, 173; see Britt v Legal Aid Socy., 95 NY2d 443, 448; Daly v Peace, 54 AD3d 801, 802). "A plea of guilty bars recovery for legal malpractice, [r]egardless of the plaintiff's subjective reasons for pleading guilty'" (Casement v O'Neill, 28 AD3d 508, [*2]509, quoting Kaplan v Sachs, 224 AD2d 666, 667). "

Full post as published by New York Attorney Malpractice Blog on November 24, 2010 (boomark / email).