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Failure to allege innocence or "colorable claim of innocence" defeats criminal defense legal malpractice claim

By John Wesley Hall, Jr.

Failure to allege actual innocence or a "colorable claim of innocence" in a legal malpractice claim is fatal to the claim. Abuhouran v. Lans, 2008 WL 739903 (2d Cir. March 18, 2008) (unpublished): Under New York law, “[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie.” Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987) (internal citation omitted). This rule has been “consistently applied to alleged malpractice occurring outside of the actual trial,” where the representation arises out of the criminal proceedings...continue to full post

Full post as published by Law Of Criminal Defense on March 27, 2008 (boomark / email).