Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

In re PRB Docket No. 2006-167, 925 A.2d 1026 (Vt. 2007)

VT: Underlying criminal defense

Student Contributor: Eric B. Kang

Facts: Lawyer represented client in a criminal matter and after a jury convicted client, the court imposed a prison sentence. Client then asked lawyer to file an appeal. Lawyer filed the appeal five days after the deadline, and the court dismissed the appeal as untimely. Thereafter, the Prisoners’ Rights Division of the Defender General’s office filed a petition for post-conviction relief alleging that lawyer’s untimely filing of the appeal constituted ineffective assistance of counsel. Lawyer cooperated in that proceeding as a potential witness. Client received another chance to file an appeal and did so. Nevertheless, the court denied client’s appeal on the merits. Client then filed a professional conduct complaint against lawyer, alleging that in filing the appeal, he failed to act diligently and promptly, as per Vermont Rules of Professional Conduct. The Hearing Panel of the Professional Responsibility Board held that missing the deadline to file the appeal did not violate the applicable rule of professional conduct. After the Board dismissed the complaint, the Disciplinary Counsel appealed.

Issue: Did lawyer’s failure to file a timely appeal constitute a violation of the rules of professional conduct?

Ruling: No. The court agreed with the Hearing Panel, which found that “a single isolated act of negligence did not constitute misconduct under the rules.” In re PRB Docket No. 2006-167, 925 A.2d 1026, 1028. Further, the rules are “intended to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar.” Id. (quoting In re Berk, 602 A.2d 946, 950 (Vt. 1991)). Here, after realizing he missed an important deadline, lawyer worked to remedy his error with client and subsequent counsel. Eventually, client was afforded his appellate rights. The court took note of lawyer’s efforts to fix his mistake and the availability of remedies to correct the error. Although, depending on the seriousness of the error, a single negligent act or omission may constitute misconduct, the court held that the totality of the circumstances in this case did not raise lawyer’s act to misconduct under the rules. “Attorneys are held to a high standard of conduct, but absent injury or other factors, a single mistake does not show a lack of reasonable diligence or promptness.” Id. at 1029.

Lesson: Everyone makes mistakes, even/especially attorneys. However, if the attorney makes an effort to correct the error and the client does not suffer irreparable harm, the attorney is likely to avoid a violation of misconduct under the rules of professional responsibility.
 

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Veneri v. Pappano, 424 Pa. Super. 394, 622 A.2d 977 (1993).

PA: Underlying felony conviction case

Student Contributor: Laura Binski

Facts: The client was convicted of two related robberies and sentenced to twenty-five to fifty years in prison. The lawyer was a public defender assigned to the client’s case. The client claims he informed the lawyer that wanted to file a petition for allowance of appeal to the Supreme Court of Pennsylvania. The lawyer did not file the petition, so the client filed it by himself. The client then filed a complaint against the lawyer for negligence in failing to file the petition. The trial court dismissed the complaint and the client appeals.

Issue: Does the client’s complaint state a cause of action in negligence against the lawyer?

Ruling:  No. The three elements for a cause of action for negligence are (1) employment of the lawyer, (2) failure of lawyer to act with ordinary skill and knowledge, and (3) that the lawyer’s negligence was a proximate cause of harm to the client. A client must also show that he likely would have won the underlying dispute. Here, the client did not suffer any real harm. The only harm he might have suffered as a result of the lawyer’s failure to file the petition was his right to habeas corpus relief. Since the client did file the petition, he suffered no real damage as a result of the lawyer’s conduct. As a result, his claim against the lawyer is speculative and does not meet the requirements of an action for negligence. In addition, the client did not make any showing that his claims were likely to be successful. Thus, the client’s case was properly dismissed.

Lesson: Speculative claims of future harm are not enough to rise to a viable cause of action. A client will not succeed in legal malpractice claims when he only asserts a possibility that he might be harmed as a result of the lawyer’s conduct. Also, a client must not forget to assert the likelihood that he would have prevailed in his underlying dispute if not for the lawyer’s malpractice. 

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State of New Jersey v. Frensel Gaitan, Appellate Division, February 7, 2011.

Underlying case: Ineffective Assistance of Counsel, Criminal Defense

Facts: Defendant pled guilty to third-degree distribution of a controlled substance within 1000 feet of a school, and was sentenced to 5 years probation.  Approximately three years later, defendant filed suit against his former attorney alleging ineffective assistance of counsel.  More specifically, he alleged that his attorney failed to discuss with him the deportation consequences of his guilty plea.  

The lower court denied defendant's petition for ineffective assistance of counsel and he appealed.

Issue: Does the failure to provide any advice with regard to deportation consequences of a guilty plea constitute ineffective assistance of counsel?

Ruling: Yes.  The Appellate Division granted defendant an evidentiary hearing as to the content and scope of his former attorney's advice, if any, regarding his potential removal from the country upon entering a guilty plea and noted: 

Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement...When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.

Lesson: Attorneys have an affirmative obligation to discuss the possibility of deportation when providing advice about the pros and cons of entering a guilty plea. Going forward, before a non-citizen defendant pleads guilty to a deportable offense, the Court must hold a hearing as to whether the defendant in a criminal case received the effective assistance of counsel. 

Other Cases: Padilla v. Kentucky, (US Sup. Ct. 2010);  State of NJ v. Nunez-Valdez (NJ Sup. Ct. 2009)

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Alvarez v. Casita Maria Inc., 269 F. Supp. 2d 834 (N.D. Tex. 2003)

TX: Underlying conviction for illegal reentry into the U.S.

Student Contributor: Megan Diodato

Facts:  The clients, illegal aliens, contacted Casita Maria, Inc. to arrange for immigration counseling services. In the course of that counseling, the clients met with multiple Casita employees, who counseled them to file certain forms and fees with the Immigration and Naturalization Service (INS). An employee of Casita filled out these forms for the clients and afterward an attorney reviewed the forms and opined that they were complete and ready to be filed. Upon advice of another Casita employee, the clients mailed the documents to their local district’s INS. Once the INS became aware of the client’s whereabouts, the INS scheduled an interview with them, which a Casita employee attended. At the interview, the clients were notified that his application to register for permanent residence would likely be denied. The client was later arrested, charged with illegally reentering the U.S., and sentenced to prison. The client alleged that the attorney is liable for legal malpractice in failing to counsel him to submit the correct INS forms and but for this negligence he would not have been imprisoned.

Issue: Whether claims of legal malpractice may be brought where the conviction has not been overturned?

Ruling: No. Under Texas law, claims of malpractice and negligence based on a criminal conviction may not be brought unless that conviction has been overturned. Peeler v. Huges & Luce, 909 S.W.2d 494 (Tex. 1995). In Peeler, the Court held that “as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned.” Id. at 498. Although the client’s claims of negligence and malpractice arise from representation in an administrative law setting rather than criminal, the harm to him is the same. Client seeks damages for his incarceration. Convicts may not shift the consequences of their crime to a third party. The client was incarcerated here because he plead guilty to a charge of illegal re-entry, not because of any action or inaction on part of attorney. Attorney’s motion to dismiss granted.

Lesson: Claims of legal malpractice seeking damages due to incarceration, including administrative law settings, may not be brought unless the conviction has been overturned. 

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Boomer v. Gross, 34 A.D.3d 1096, 825 N.Y.S.2d 171 (N.Y. App. Div. 2006)

NY Underlying Criminal Defense

Student Contributor: John Anzalone

Facts: Defendant attorney was paid by Plaintiff's stepfather to help file a motion on behalf of criminal defendant Plaintiff. Defendant concluded that the motion he was asked to help file would be frivolous and offered to refund "some or all" of the payments made to him. Plaintiff was convicted of several crimes including attempted murder. Plaintiff' brought a legal malpractice suit against Defendant that was dismissed.

Issue: Can the Plaintiff sue an Attorney who did not represent him at trial for legal malpractice in a criminal case if his conviction has not been overturned?

The Ruling: In affirming the lower courts grant of summary judgment for Defendant, the Court held that Plaintiff could not sue the attorney, based on the following considerations:
1) It is a "well-settled principle" that criminal defendants cannot sue attorneys for legal malpractice in their criminal cases if they were found guilty and that determination was not subsequently disturbed.
2) This principle is applicable to attorneys who represent the defendants at the criminal trial and those that represent the defendants solely outside of the court room.

The Lesson: The undisturbed determination of the plaintiff's guilt is a complete defense to a claim for legal malpractice in a criminal case. These plaintiffs cannot sue their attorneys for malpractice. This applies to all attorneys who do work for criminal defendants and is not limited to their trial attorneys.
 

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Sash v. Schwartz,  2007 WL 30042 (S.D.N.Y. 2007).

N.Y. underlying criminal conviction

Student contributor: Cheryl Neuman

Facts: Plaintiff was represented by defendant attorney in a criminal proceeding. Plaintiff was arrested for unlawfully possessing and producing N.Y.P.D. badges and selling counterfeit police badges. He was also arrested for possession of counterfeit bar code stickers for merchandise at K-Mart stores. After appearing before the magistrate judge, plaintiff pled guilty to two counts. He was  sentenced to eight years of supervised release. The Second Circuit affirmed the conviction but decreased the supervised release to three years. Plaintiff was also indicted for fraud, arising from filing false insurance documents claiming that his wife had been killed in the World Trade Center attacks on 9/11. Plaintiff claims that but-for defendant’s negligent representation, he would not have pled guilty to the various crimes with which he was charged.

Issue: Is the defendant liable to the plaintiff for legal malpractice?

Ruling: No, the defendant is not liable to the plaintiff for legal malpractice because a criminal defendant must show that the alleged legal malpractice was the “cause of the conviction.” Claudio v. Heller, 119 Misc.2d 432 (N.Y. Sup. Ct. 1983). The standard for a criminal defense malpractice claim differs from the standard for civil legal malpractice.  A plaintiff must allege his innocence of the underlying offense to successfully bring a legal malpractice case against his attorney in an underlying criminal proceeding. The elements of a malpractice case in N.Y. are:
1) A duty
2) A breach of the duty, and
3) Proof that actual damages were proximately caused by breach of the duty

Lesson: “A criminal defendant may be able to prove that but for the action of his counsel he would have invoked the 5th amendment or succeeded in suppressing evidence.” Carmel, 70 N.Y.S.2d 173. A criminal defendant, however, who pled guilty or was found to be guilty, cannot assert his innocence. It is for that reason that a criminally convicted plaintiff cannot bring a legal malpractice cause of action under these circumstances. Had the conviction been overturned or vacated, then plaintiff’s claim might  not have been barred.

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Lawson v. Nugent, 702 F. Supp. 91 (D.N.J. 1988)

NJ Underlying Criminal Action

Student Contributor: Colleen Gaedcke

Facts: The plaintiff retained the defendant attorney as defense counsel after being indicted for the robbery of a post office. Upon the advice of the defendant attorney, plaintiff pleaded guilty and was sentenced to 25 years in prison. While in prison, the plaintiff retained new counsel and obtained a reduction in his sentence. Eventually, he was released after serving 5 years.
Upon release, plaintiff brought a legal malpractice suit against the defendant attorney alleging that, but for the defendant’s negligent legal representation, he would have served a maximum of only 40 months in prison. The plaintiff sought damages for emotional distress as a result of the anguish he suffered for the additional 20 months he spent in prison, allegedly, as a result of his attorney’s ineffective representation.

Issue: Can a criminal defendant recover damages for emotional distress in a legal malpractice action?

Ruling: Yes. The United States District Court, District of New Jersey, held that the plaintiff may pursue emotional distress damages if he could first establish (1) the existence of some egregious or extraordinary circumstance; and (2) the allegedly negligent attorney was retained to protect something other the plaintiff’s economic interests.

Lesson: Given that the attorney-client relationship in a criminal proceeding is predicated upon the protection of the client’s interest in his freedom and sovereignty, “an attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence, including emotional distress resulting from [his] loss of liberty."

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Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001)

Student Contributor:  Melissa Goldberg

NJ Underlying Criminal Defense

Facts: Plaintiff, a public accountant, sued his attorney for legal malpractice alleging his professional negligence caused him to plead guilty to a federal misdemeanor charge for refusing to give information to the IRS in a tax investigation. Plaintiff contended that his attorney failed to keep him properly informed about the potential of a criminal investigation and failed to arrange a meeting with the IRS where the government could have been persuaded to either grant him immunity or decide not to prosecute.

Issue: Does an unimpeached guilty plea in a criminal proceeding bar recovery in a legal malpractice action?

Ruling: Yes, Plaintiff cannot seek in a civil action to renounce his federal conviction, or seek money damages for a wrongful conviction based on his guilty plea which he never otherwise attacked, since:
1) He unconditionally pled guilty to a criminal offense committed before representation was commenced; and
2) It would undermine the guilty plea if a defendant were allowed to argue that no prosecution would have occurred if his attorney had used different tactics.

Lesson: Public policy does not permit defendants who have been convicted of a criminal offense from profiting from their illegal conduct by shifting blame to their defense attorneys.

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