Recently we told a mother that she had little likelihood of success in suing her son’s criminal defense attorney. Questions of privity aside, the bar is extraordinarily high in trying to sue after a conviction. Social policy and the Courts have set up a situation in which the lack of “actual innocence” acts as a bar to the legal malpractice claim. Here is Justice Braun discussing the matter in Kaplan v Khanna 2015 NY Slip Op 25158 Decided on May 15, 2015 Supreme Court, New York County.
” Where a plaintiff pleads guilty in an underlying criminal prosecution, expressly admitting his or her guilt, and that plea remains undisturbed, it precludes a legal malpractice claim as a matter of law (see Carmel v Lunney, 70 NY2d 169, 173  [“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense (citation omitted), for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. [*2]Here, because plaintiff’s conviction by plea of a misdemeanor violation of the Martin Act has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action .”]; Alampi v Russo, 345 NJ Super 360, 371 [NJ Super AD 2001] [to permit the plaintiff in a legal malpractice action to “go behind a federal guilty plea … would undermine the integrity of the federal guilty plea in pursuit of a highly speculative thesis-that plaintiff would have achieved an optimum outcome’ of no prosecution if his first attorney had in retrospect used different tactics.”]). Moreover, in pleading guilty before the District Judge, plaintiff acknowledged the factual basis for the guilty plea, that he entered it willingly and voluntarily, and that he was satisfied with his attorney’s representation, and that court found that there was a factual basis for the plea of guilty (cf. Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758 [2nd Dept 2014] [“The plaintiff’s allegations that he was coerced into settling the litigation were utterly refuted by his own admissions during the settlement proceeding that he had discussed the terms of the settlement with his attorneys, that he understood the settlement terms and had no questions about them, that he was entering into the settlement freely, of his own volition, and without undue influence or coercion, and that he was satisfied with his legal representation.” Thus, the legal malpractice cause of action was dismissed, upon a CPLR 3211 (a) (7) motion]).”