2d Circuit Distinguishes between Civil and Criminal Legal Malpractice Cases

Criminal Defense practitioners enjoy a special dispensation in the legal malpractice world.  Plaintiff there must be able to allege [in New York] actual innocence.  One need not allege freedom from wrong in the civil end of things.

In Hitham Abuhouran, Plaintiff-Appellant, -v.- Asher E. Lans, et al., Defendants-Appellees.

06-2857-pr UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT  the 2d CC goes to great lengths to distinguish between a potential claim in civil legal malpractice v. criminal legal malpractice. "Under New York law, to state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, a 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. This rule has been consistently applied to alleged malpractice occurring outside of the actual trial, where the representation arises out of the criminal proceedings. The showing of innocence is unnecessary, however, where the representation arises out of civil proceedings, even if malpractice in the civil proceedings eventually led to an associated criminal prosecution."

"Here, Abuhouran alleged that he retained Jackson & Nash to "assign[] defense lawyers," "negotiate[e] with appell[ate] [c]ounsel," and to "attempt[] to meet with King Hussein, late King of Jordan, in efforts to ease the harsh sentence that was [previously] imposed" after Abuhouran had pleaded guilty to criminal charges. This representation plainly arose out of the criminal prosecution and is not the result of a prior civil representation. Thus, to succeed, Abuhouran would have had to show innocence or a colorable claim of innocence. See Carmel, 511 N.E. 2d at 1128. Because Abuhouran failed to allege his innocence in the amended complaint or in any of the subsequent proposed amended complaints, the district court did not abuse its discretion in denying the motions to amend the complaint as futile or in denying [**4] the motion for reconsideration. Additionally, the district court properly dismissed the complaint for failure to state a cause of action. "



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