Legal Malpractice

A Truckfull of Marijuana and Legal Malpractice

By (Andrew Lavoott Bluestone)

Plaintiff was driving a truckfull of marijuana when he was stopped and arrested.  He says in the legal malpractice complaint that he spent less than an hour with his attorney prior to pleading guilty.  He believes that this was legal malpractice, and the criminal trial [appellate ?] court agreed with him to a certain extent.  They allowed withdrawal of the plea based upon ineffective assistance.

But is ineffective assistance of counsel legal malpractice?  The Legal Profession Blog reports:

"The Kansas Supreme Court affirmed the dismissal of a legal malpractice claim brought by a convicted defendant against his retained counsel. The client was arrested driving a truck that contained more than 3000 pounds of marijuana. He denied knowledge of the drugs but pleaded guilty on the attorney's advice. He claimed that the attorney "spent less than 1 hour with him prior to the disposition of his criminal case." He was allowed to withdraw his plea on a finding of ineffective assistance of counsel and got diversion after serving the sentence. A disciplinary investigation "determined that none of [the lawyer's] actions rose to the level of professional misconduct."

The absence of expert testimony was fatal to the malpractice claim:

The two issues [the client] raised involved matters outside the common knowledge of a lay person. The intricacies of the interplay between state and federal jurisdiction, the customs of a particular court, and the federal law surrounding immigration and deportation are all specialized areas of the law about which a lay juror would not know. Accordingly, we do not believe there was any way Singh could prove deviation from the standard of care without the use of expert witness testimony. The district court properly granted [the attorney's] motion for summary judgment on that issue. "

Full post as published by New York Attorney Malpractice Blog on May 13, 2008 (boomark / email).