Legal malpractice in criminal defense does not exist. Bluntly put, a criminal defendant may not successfully sue his criminal defense attorney absent a showing of “actual innocence”. This translates to: reversal, ineffective assistance of counsel determined by a CPL§ 440 motion or exculpation.

Scott H. Greenfield reports an interesting take on this issue in his  Simple Justice Blog.  Here is a short take from it:

Most criminal defense lawyers take comfort in the tacit understanding that the chances of being successfully sued are slim to none. Absent proof of actual innocence, even abject incompetence causes no harm. So that gives the defense lawyer a free pass in botching a case, true?

Unfortunately, the answer is, with certain exceptions, true. This emboldens some lawyers to act with utter indifference to their responsibilities to their clients. Failing to ask for a hearing, or give proper and timely alibi notice. Failing to inspect a crime scene or read the discovery. The dreaded motion to suppress identification when no ID notice was given. Falling asleep at trial, for god’s sake. All terrible, but not necessarily actionable. Why? Because the defendant cannot prove actual innocence.”

Greenfield, a nationally recognized criminal defense attorney, television commentator and author, specializes in trials and appeals with offices in New York City.