Legal Malpractice

Legal Malpractice and the Criminal Plaintiff

By (Andrew Lavoott Bluestone)

Criminal Law practitioners enjoy a blanket immunity for legal malpractice not permitted to any other field of law.  Briefly put, a convicted criminal defendant may not successfully sue his attorney unless he can demonstrate innocence or later exoneration.

Here is a case of an individual who pled to a counterfeiting [presumably handbags, ect, and not currency], and was then deported.  His legal malpractice case was wiped out across the board.

Yong Wong Park v Wolff & Samson, P.C.; 2008 NY Slip Op 09176 ;Decided on November 20, 2008 ; Appellate Division, First Department :
 

"Plaintiffs' claim that defendants committed legal malpractice by advising plaintiff Yong Wong Park to plead guilty to a federal charge of trafficking in counterfeit goods without advising him of the immigration consequences of his guilty plea, or by giving him wrong legal advice about such consequences, is barred by Park's undisturbed guilty plea (see Carmel v Lunney, 70 NY2d 169, 173 [1987]). We reject plaintiffs' argument that innocence need not be alleged where, as here, the alleged malpractice related to a collateral matter (deportation) rather
than the core of the criminal action (see Biegen v Paul K. Rooney, P.C., 269 AD2d 264 [2000], lv denied 95 NY2d 761 [2000]; see also Casement v O'Neill, 28 AD3d 508 [2006] [guilty plea bars malpractice claim regardless of plaintiff's subjective reasons for pleading guilty]). There are other deficiencies in the legal malpractice claim requiring its dismissal: it does not allege that "but for" defendants' alleged malpractice Park would not have pleaded guilty (see Carmel, 70 NY2d at 173); and to the extent the claim is based on the allegation that defendants affirmatively gave Park wrong advice about the immigration consequences of a guilty plea, such allegation conflicts with, and is precluded by, contrary factual findings made in the federal proceedings in which Park sought to vacate his plea on the ground of ineffective assistance of counsel (see Siddiqi v Ober, Kaler, Grimes & Shriver, 224 AD2d 220 [1996], lv denied 88 NY2d 812 [1996]). "

Full post as published by New York Attorney Malpractice Blog on November 24, 2008 (boomark / email).