Legal Malpractice rules are either legislated or court created.  There is no general underpinning such as an amendment to the Constitution, nor is there a basic common law history (with the very notable exception of the area of attorney deceit, which is as old as the Magna Carta.)  But as we have commented before, legal malpractice is the law of lawyers, written by lawyers, prosecuted by lawyers, and ruled on by lawyers.

Criminal defendants have no real ability to sue their attorneys for the mistakes which may have ended in the conviction.  In New York, a criminal defendant must demonstrate "actual innocence" before suing the attorney.  The thinking goes that a criminal was convicted on the evidence and not simply on blunders or shoddy work.  This must be true, no?

Yesterday’s New York Times tells of a simple calendaring mistake by Sullivan & Cromwell which could lead to an execution.  Cory R. Maples was convicted in Alabama of murder, and in the sentence phase, was sentenced to death.  Sullivan & Cromwell offered pro bono work on his case.  When an order, which required a responsive filing was mailed to the attorneys listed at Sullivan & Cromwell, they had moved on, and the envelopes were returned.

This was a most common law office failure/calendaring error.  This time, the consequences were not a loss of money, but, rather a potential execution.  The matter is now before the Supreme Court on a cert application. 

Is this the case that might change the rule in criminal legal malpractice?