Legal malpractice cases against the criminal defense attorney are confusing.  In addition to all the other elements, in NY one must prove actual innocence or exoneration.  When the statute begins to run [date of malpractice, date of last representation, date of final judgment, date that post-conviction motion decided, reversal or exoneration] is a difficult call. 

McNight  v. Office of Public Defender.  This NJ case is remarkable for several reasons.  The first is a discussion of how an attorney, "on a busy Wednesday plea day" simply forgot to ask his client whether he was a US citizen and how a misdemeanor conviction would impact him.  Here, it led to a deportation order, and when Trinidad would not take him back, imprisonment without end.

The second reason is the legal aid attorney’s willingness to admit his wrong.  Sometimes, it seems that criminal defense attorneys are much more willing than other attorneys to admit they made a mistake, if it helps the client get a new trial or get his plea back.

For us, the most important reason is the compelling discussion of the state’s different positions on how to handle a criminal defense legal malpractice case.  More tomorrow.