As if a textbook discussing many of the less obvious hurdles for a legal malpractice claimant, Brooks v Baker & Hostelter, LLP  2022 NY Slip Op 32871(U)  August 23, 2022  Supreme Court, New York County  Docket Number: Index No. 655754/2021  Judge: Arlene P. Bluth defines and sets forth the law on issues of standing, commencement of the suit, actual innocence in a claim against a criminal defense attorney and the acts of subsequent counsel.

“As an initial matter, the Court finds that plaintiff lacked capacity to bring this lawsuit at the time the complaint was filed. He admitted in opposition that he petitioned the probate court in Florida on July 12, 2022 to reopen the estate (it was previously closed) and for his reappointment as personal representative. This case was filed in September 2021 and so he did not have capacity to sue on behalf of his brother’s estate when this case was commenced.

Even if the Court were to overlook plaintiff’s lack of capacity to sue, the fact is that plaintiff did not state a valid cause of action for legal malpractice. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal
profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).

“[A]n individual convicted of a criminal offense must be able to assert his innocence or a colorable claim of innocence before he can pursue a claim against his attorney for legal
malpractice arising out of the criminal proceeding” (Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445, 718 NYS2d 264 [2000]).

Here, it is undisputed that Mr. Brooks pled guilty to various tax charges and was sentenced to years in prison. That the tax charges were severed does not change the fact that
they were all part of the same purportedly insufficient indictment about which plaintiff complains. Moreover, it is undisputed that defendants were representing Mr. Brooks during a
time period when all the charges (both tax and non-tax) were included in the same indictment.

Plaintiff’s attempt to show that Mr. Brooks would not have been imprisoned if defendants had raised the issue about the defective indictment is mere speculation. This claim relies on the suggestion that, somehow, Mr. Brooks would have convinced a subsequent grand jury not to indict him. Of course, that argument fails because he pled guilty to the tax charges. It is also critical to point out that any jurisdictional defect was rendered moot when the government empaneled a new grand jury that returned a second superseding indictment containing the exact same charges against Mr. Brooks. And the courts reviewing the issue noted that any prejudice was overcome.

And, as defendants point out, Mr. Brooks hired many attorneys throughout the course of the U.S. Attorney’s investigation into his criminal conduct and defendants were long gone by the time the actual criminal trial started or when Mr. Brooks pled guilty. These other attorneys had ample opportunity to raise any number of issues on Mr. Brooks’ behalf. And so even if there was some malpractice, successor counsel had a chance to address it (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487, 74 NYS3d 534 [1st Dept 2018] [dismissing a legal malpractice claim where a successor counsel had sufficient time to protect plaintiff’s interests and failed to do so]).

Finally, the Court finds that the instant matter is time-barred. The Second Circuit’s decision vacating his conviction was issued on September 20, 2017 (see United States v Brooks,
872 F3d 78, 96 [2d Cir 2017]) and this case was not commenced until September 2021. “