There are a whole group of social policy roadblocks to legal malpractice litigation. The additional element of “but for” causation is one; the requirement of privity is another; the exemption for strategic decisions is a third. A very black and white limitation is that of legal malpractice by a criminal defense lawyer. Put in short, it is required that the client be acquitted, have the conviction reversed on appeal or be exonerated before a legal malpractice suit may be brought.
This is the short lesson of Braxton v Segal 2018 NY Slip Op 50393(U) Decided on March 26, 2018 Supreme Court, New York County Reed, J. in which a pro-se claimant has the complaint dismissed.
“With regard to plaintiff’s motion for summary judgment as to Segal, “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” (see Carmel v. Lunney, 70 NY2d 169). Plaintiff has not done so here. Instead, plaintiff alleges that Segal’s prior complaints, admonishments and suspensions from the practice are conclusive proof of malpractice in his case, entitling plaintiff to monetary relief. Such a clustering of unfortunate facts, however, does not translate into an articulable claim of legal malpractice. Segal was, it is true, suspended from the practice of law during the representation of plaintiff’s case. The Appellate Division of the First Judicial Department ordered Segal to transfer his cases to another attorney in good standing. While it certainly is an inconvenient and untimely disruption for any criminal defendant to receive a new attorney, this alone is not sufficient to sustain a cause of action for legal malpractice. Accordingly, plaintiff’s motion for summary judgment as against Segal is denied. Moreover, again searching the record pursuant to CPLR 3212(b), the court grants summary judgment to defendant Segal dismissing the complaint as against him — inasmuch as plaintiff fails to present anywhere in the record even a colorable claim of innocence in connection with the criminal matter for which defendant Segal provided him representation (see Carmel v. Lunney, supra; Merritt Hill Vineyards, supra).”