In SASH v.  ROSAHN, ESQ., as the Supervising Attorney for the Parole Revocation Unit of Defendant The Legal Aid Society, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK  2009 U.S. Dist. LEXIS 52480   June 16, 2009, Decided  we see a three-pronged attack on plaintiff’s criminal defense attorney, each of which fails.
 

Legal malpractice against one’s criminal defense attorney is difficult to impossible. "[t]o state a cause of action for legal malpractice arising from negligent misrepresentation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense." Sash v. Dudley, No. 05-cv-7498, 2006 U.S. Dist. LEXIS 20146, 2006 WL 997256, at **2 -3 (S.D.N.Y. April 17, 2006); Carmel v. Lunney, 70 N.Y.2d 169, 511 N.E.2d 1126, 518 N.Y.S.2d 605, 607 (1987). It is well established under New York law that "so long as the determination of [a plaintiffs] guilt for that offense remains undisturbed, no cause of action will lie." Id. A guilty plea will therefore generally preclude a defendant from lodging a malpractice claim against his defense lawyer. See Scanio v. Palmiere & Pellegrino, 251 A.D.2d 1018, 674 N.Y.S.2d 527, 528 (4th Dep’t 1998); see also Estes v. Doe, No. 97 Civ. 8133, 1999 U.S. Dist. LEXIS 16768, 1999 WL 983886, at *4 (S.D.N.Y. Oct. 29, 1999). "Thus, a criminal defendant cannot even state a claim for legal malpractice until his conviction is overturned or vacated." Smith v. Morgenthau, No. 95 Civ. 4159, 2001 U.S. Dist. LEXIS 15690, at *8 (S.D.N.Y. June 8, 2001). Public policy prevents maintenance of a malpractice action against a defense attorney if a criminal defendant cannot assert his innocence. "This is so because criminal [*11] prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules." Carmel, 518 N.Y.S.2d at 607."

Suing one’s criminal defense attorney in defamation for words spoken at the trial or hearing is similarly difficult.  "Under New York law, the elements of a defamation claim are a false statement, published without privilege or authorization to a third party, constituting fault and it must either cause special harm or constitute defamation per se." Peters v. Baldwin Union Free School Dist., 320 F.3d 164, 169 (2d Cir.2003) [*14] (citation omitted); see also Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir.2001) (spoken defamation is slander and "[t]he elements of a cause of action for slander under New York law are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege" (citation omitted)).

At the parole revocation hearing, Sash pled guilty with an explanation to the charge of violating the conditions of his release, at which time Rosahn provided mitigating factors to the court on Sash’s behalf. Following the hearing, Rosahn made the above-described statements to various court officers (stating that she had to "bite her tongue" in representing Sash). (Comp. para. 35; Def. Motion Ex. D.)

To the extent that Sash seeks to base a claim of defamation on words spoken by Rosahn during the hearing, those words are privileged and cannot give rise to an actionable claim here. Shernoff v. Soden, 266 Fed.Appx., 12, 12 (2d Cir. 2008); Park Knoll Assocs. v. Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182, 184 (1983) [*15] ("[A] lawyer has immunity for defamatory words spoken in a judicial proceeding[.]").

To the extent that Sash seeks to base a claim of defamation on Rosahn’s statements to the administrative law judge and the parole specialist, those statements are protected expressions of opinion, not defamatory assertions of fact of or concerning Sash, and cannot give rise to a claim of defamation. See Shernoff v. Soden, 266 Fed.Appx., 12, 12 (2d Cir. 2008); Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 177-79 (2d Cir.2000)."