Where else in the world of law might a party say that they had definitely made a mistake, and definitely departed from good practice, yet be immune?  We’re not talking about an act too many years ago, or an act that was compelled.  Here, in a familiar but fascinating story, attorney  Diarmuid White freely admits that he departed from proper standards in representing a client. 

The story in the NY LJ today by Mark Hamblett tells how a mob related trial ended with only one person convicted.  While attorney White succeeded on murder and  other very significant criminal charges, he failed in the RICO charges.  Now, Michael Yanotti asks the court to give him a new trial on those RICO charges.  Judge Scheindlin turned him down.

"Judge Scheindlin found in Yannotti v. United States, 10 Civ. 2546, that Mr. Yannotti was not prejudiced by Mr. White’s error at his 2005 trial.

Mr. Yannotti was the lone defendant convicted in a trial that ended with a hung jury for his co-defendants, including John "Junior" Gotti.

Despite Mr. White’s error, he achieved considerable success on other counts, as Mr. Yannotti was acquitted on two murder charges and the allegation he attempted to kill Guardian Angels founder and radio talk show host Curtis Sliwa in 1992 out of revenge for comments Mr. Sliwa had made about the late head of the Gambino crime family, John Gotti.

And post-trial, Judge Scheindlin entered a judgment of acquittal on a substantive racketeering count involving loansharking.

Following his conviction, Mr. Yannotti appealed to the U.S. Court of Appeals for the Second Circuit, which in 2008 held that "the fact that the government did not prove Yannotti’s specific knowledge of or participation in each predicate act conducted by other members of the Gambino family does not undermine the sufficiency of the evidence establishing his conviction."

After the U.S. Supreme Court denied his petition for a writ of certiorari in 2009, Mr. Yannotti filed a motion challenging his sentence under 28 U.S.C. §2255 as imposed in violation of his right to effective assistance of counsel."

So, one asks, might he sue his attorney?  The resounding answer is no…no!  A criminal defendant may not sue his criminal defense attorney for legal malpractice until and unless he can show "actual innocence" which generally means reversal, acquittal or exoneration.