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

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link