Attorneys are afforded a very wide swath of protection when they act as criminal defense attorneys. They cannot be successfully sued for legal malpractice unless the client can show that they are “free of a conviction” or demonstrate “actual innocence” That did not happen in Brooks v Shechtman 2022 NY Slip Op 33155(U) September 19, 2022 Supreme Court, New York County Docket Number: Index No. 158640/2020 Judge: Alexander M. Tisch.
“In or about January 2007, Brooks consulted with and subsequently retained ,and hired defendants Paul Schectman (Schectman), the principal of member of defendant Stillman
Friedman & Schectman P .C. (SFS) (collectively, defendants) (id. at 13, 11 ). The complaint alleges that, pursuant to Federal Rule of Criminal Procedure 6 (g), the grand jury’s lawful term lasts only eighteen months and therefore expired on October 6, 2007 (id. at 1 13). The complaint alleges that on or about October 24, 2007, Schectman advised Brooks during a meeting that the federal grand jury that was investigating Brooks had or was about to expire (id. at, 12). Nevertheless, Brooks was arrested and taken into custody on charges set forth in a superseding indictment on October 25, 2007 (id. at 1 15). The complaint alleges that defendants knew, or in the exercise ofreasonable care should have known, that the grand jury’s term had expired and therefore had no lawful authority to indict (see, e.g., id. at 1 17). ”
“”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'” (Rudolf Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 , quoting McCoy v Feinman, 99 NY2d 295, 301-302 ). When the alleged negligent representation arises from a criminal proceeding, plaintiff must also “allege his innocence or a colorable claim of innocence of the underlying offense” (Carmel v Lunney, 70 NY2d 169, 173 ; see Sgambelluri v Ironman, 78 AD3d 924,925 [2d Dept 2010). “In order to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential (plaintiffs from asserting innocence in a civil suit” (Britt v Legal Aid Socy., 95 NY2d 443, 447 ). Plaintiff must also “show that the attorney was the proximate cause of his or her conviction” (Britt v Legal Aid Socy., 95 NY2d 443, 446 ; see Dombrowski v Bulson, 19 NY3d 347, 350-351 ). More specifically, the law requires that the plaintiff “bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt” (id. at 447; see Rudolf, 8 NY3d at 442 [“To establish causation, a plaintiff must show that he or she would have prevailed in the underlying · action or would not have incurred ary damages, but for the lawyer’s negligence”]) .”
“Here, because Brooks plead guilty to certain tax evasion counts, those convictions were not abated by the Second Circuit in United States v Brooks (872 F3d 78, 87-88 [2d Cir 2017)).
Accordingly, the legal malpractice action may not be maintained as to those counts (see Sgambelluri, 78 AD3d at 925 [“A plea of guilty bars recovery for legal malpractice, ‘[r]egardless
of the plaintiffs subjective reasons for pleading guilty”‘], quoting Casement v O’Neill, 28 AD3d 508, 509 [2d Dept 2006] [internal citations omitted]).
As for the remaining convictions, plaintiff argues that.the mere abatement of them due to Brooks’ death suffices for the purposes of a legal malpractice claim, given the significance of the abatement “ab initio” as if the convictions never happened (see NYSCEF Doc No 9, plaintiff’s mem in opp at’7). However, the Court finds that the abatement of the conviction due to Brooks’ death, by itself, falls short of being construed as a “colorable claim of innocence” required for the legal malpractice claim. Notably, there are no allegations of innocence in the entire complaint and, without it, “public policy prevents maintenance of a malpractice action against his attorney” (Carmel, 70 NY2d at 1 73 [i 987]). “