Legal Malpractice

Ineffective Assistance may not be Legal Malpractice

By (Andrew Lavoott Bluestone)

Plaintiff in Gersten v. Lemke, 110651/07 ,Decided: February 14, 2008 ,Justice Marylin G. Diamond ,NEW YORK COUNTY Supreme Court  was indicted.  He was convicted.  He successfully had the indictment dismissed, after demonstrating ineffective assistance of counsel.

Start the legal malpractice case now?  Yes, but there is little use for the Fed. District Court finding of ineffective assistance.  In fact, plaintiff has three hurdles: (a) actual innocence; (b) statute of limitations and (c) showing the actual deviation.

Here, no collateral estoppel.  Defendant attorney did not have a "full and fair" opportunity to be heard, and was not at the ineffective assistance hearing.

The statute of limitations starts to run with the dismissal of the indictment, not on the date of the deviation. 

Actual innocence must be demonstrated by plaintiff.  It is still his burden.

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