A viable legal malpractice case arising from a criminal prosecution is very rare.  A criminal defendant may not sue the criminal defense attorney absent proof of "actual innocence."  Actual innocence is typically defined as acquittal, reversal or exoneration.  Here, in Dawson v Schoenberg; 2011 NY Slip Op 32033(U);July 8, 2011;Supreme Court, New York County
Docket Number: 16502/09;Judge: Anthony L. Parga we see two of the three. 

"This is an action for legal malpractice arising from the defendant’ s representation of the plaintiff in the action entitled People a/the State a/New York v. Joetta Dean. Defendant was retained to defend the plaintiff following her arrest stemming from allegations that she sexually abused her three minor children. Plaintiff was indicted with thee counts of Course of Sexual Conduct Against a Child (PL 130. , a Class D Felony) and one count of Sexual Abuse in the Second Degree (PL 130.60(2), a Class A Misdemeanor). Defendant represented plaintiff through her first criminal trial, after which, on March 28, 2006, she was convicted of all counts. Plaintiff was sentenced to twenty-one years in prison. After her conviction, plaintiff terminated the services of the defendant and hired
successor counsel, Kevin Keating, Esq., who brought a motion on plaintiffs behalf to vacate the
judgment pursuant to CPL 440. 1 0 (hereinafter referred to as "440 motion ). After a hearing
was held before the first trial judge, the plaintiffs 440 motion was denied. Thereafter, plaintiff appealed her conviction to the Appellate Division, Second Department, which, on April 22, 2008, overturned plaintiff’s conviction based upon a finding that the defendant rendered "ineffective assistance of counsel." In its decision, the Appellate Division, Second Department stated , "we do not find that any single example of deficient representation was sufficient to deprive the defendant of the effective representation of counsel. Rather, we conclude that, given the totality of her counsel’ s deficient representation, the defendant was denied meaningful representation. Based upon the appellate court’s’ s ruling, the plaintiff was granted a new trial before a new judge. Represented by successor counsel, plaintiff was re-tried and acquitted of all charges in October 2008. After plaintiff’s acquittal , the court record was sealed pursuant to N.Y. CPL 160. 50."

"The defendant is entitled to disclosure of the second trial transcripts, as the plaintiff has
placed the underlying criminal action at issue in this civil lawsuit, and as a failure to disclose the
second trial transcripts is prejudicial to the defense of this matter by the defendant. A cause of
action for criminal legal malpractice accrues when the criminal proceeding is terminated
, i.e. , on
the date when the indictment against the plaintiff is dismissed. (Britt v. Legal Aid 95 N.Y.2d
443 (2000)). Accordingly, plaintiff’s claim for legal malpractice herein did not even accrue until
the conclusion of the second trial when she was acquitted of the charges brought against her. As
[* 2]
such, the transcripts from the second criminal trial, and the jury s verdict resulting therefrom, are
needed by both the plaintiff to prove legal malpractice, and the defendant to defend against said
claim.’ Further, as the second trial was conducted by a different criminal defense attorney,
presided over by a different judge, possibly prosecuted by a different Assistant District Attorney,
and held before a different jury, factors other than the defendant’s alleged malpractice may have
attributed to the favorable verdict for the plaintiff in the second trial."