We have often argued that attorneys are given many dispensations in legal malpractice litigation that defendants in other professional negligence cases and in most litigation do not enjoy. Our colleagues in the legal defense bar don’t exactly disagree, but generally argue that the rules are fair. One item that no one disagrees with is that in order to have a good legal malpractice claim against a criminal defense attorney, the plaintiff must show “actual innocence as we see in Brooks v Winston & Strawn LLP 2024 NY Slip Op 33362(U) September 24, 2024 Supreme Court, New York County Docket Number: Index No. 159003/2021 Judge: Lisa S. Headley.

“On September 30, 2021, plaintiff, Jeffrey Brooks, filed this action as the acting personal representative of the decedent, David Brooks, against the decedent’s former attorneys, Gerald L. Shargel, Esq., Law Office of Gerald L. Shargel LLP and Winston & Strawn LLP ( collectively, “defendants”) for legal malpractice while representing the decedent, who was subject to federal grand jury investigations in 2006, and subsequently convicted in August 2010, following a trial, for fraud and obstruction to justice, and sentenced to a term of imprisonment, a fine, and a forfeiture motion judgment and restitution. The decedent died on October 27, 2016, while in federal custody. Specifically, the plaintiff alleges, inter alia, the defendants provided incorrect legal advice, and failed to represent the decedent with reasonable care, skill and diligence ordinarily exercised by attorneys specializing in the areas of law. Plaintiff asserts in the Complaint that the defendants held themselves out as experts in the field of federal grand jury investigations, and white-collar criminal defense, however they breached their fiduciary duty, inter alia, by failing to take action that would have exposed unlawful use of an expired grand jury by the Assistant United States Attorney prosecuting the federal criminal case against the decedent. Plaintiff is also seeking monetary damages for defendants’ legal malpractice, negligence, breach of fiduciary duty, and breach of contract. “

“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 for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding. The client must show that the attorney was the proximate cause of his or her conviction.” See, Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446 (2000) [internal citations omitted]. Here, the plaintiff’s Complaint fails to state a cognizable cause of action for professional malpractice and breach of contract. As it pertains to the legal malpractice claim, “[ d]ecisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws.” Brookwood Companies, Inc. v. Alston & Bird LLP, 146 A.D.3d 662 (1st Dep’t 2017). To survive dismissal, the complaint must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages.” Franklin v. Winard, 199 A.D.2d 220 (1st Dep’t 1993) [internal citations omitted]. In addition, “it must be established that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It must also be established that the attorney’s negligence was a proximate cause of the loss sustained, and that the plaintiff incurred damages as a direct result of the attorney’s actions.” Hwang v. Bierman, 206 A.D.2d 360 (2d Dep’t 1994) [internal citations omitted]. Furthermore, this Court finds plaintiff’s arguments do not prevail, and even if the defendants executed a different strategy, that would not have rendered the decedent a more favorable outcome in the criminal action. The decedent’s grievances or disappointment in the outcome of the criminal action handled by the defendants does not constitute legal malpractice. In addition, the defendants argue that the decedent’s guilty plea bars this action because the decedent did not have a “colorable claim of innocence.” “[W]hen a frustrated litigant complained of counsel’s omissions,’ [p ]lain tiffs remedy relies on prima facie proof that he would have succeeded'[.]” Pellegrino v. File, 291 A.D.2d 60, 63 (1st Dep’t 2002). Here, there is no dispute that the decedent pled guilty to certain charges and was found guilty on some charges after a jury trial. (See, NYSCEF Doc. No. 52). As such, the Court hereby dismisses the plaintiff’s legal malpractice cause of action.”