Legal Malpractice

Criminal Legal Malpractice in the Federal Arena

By (Andrew Lavoott Bluestone)

Criminal defendants have a well known and exacting path.  Arrest, Indictment, Trial, Appeal, CPL 440 Motion (or its federal equivalent) habeas proceedings, and finally, they often turn to a legal malpractice action.  In New York there is a strict prohibition against suing ones criminal defense attorney.  Its sort of a quasi-immune situation.  "New York law also demands that, in order to "open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential plaintiffs from asserting innocence in a civil suit." Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 447, 741 N.E.2d 109, 718 N.Y.S.2d 264 (N.Y. 2000)." 

So, in Sash, v. Schwartz,No. 07-1249-pr;UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 27421; December 16, 2009 we see plaintiff lose in summary judgment.  "As Appellant's brief does not raise the issue of whether he established diversity jurisdiction, that argument is waived on appeal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that, where a litigant, including one proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned).

In any case, the district court properly granted summary judgment to Appellee. [*2] We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Under New York law, in order to state 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 . . . for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie." Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 518 N.Y.S.2d 605 (N.Y. 1987). "

Full post as published by New York Attorney Malpractice Blog on January 07, 2010 (boomark / email).