When may a criminal defendant sue her criminal defense attorney?  Almost never, and when it is permissible, usually in breach of contract.  Here, in CAROL PEIRCE, -v- JAMES NEUMAN,  Index Number 116678/2008; SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 31812U; 2011 N.Y. Misc. LEXIS 3288 we see a case which loses on the facts, but not on procedural aspects of legal malpractice.  This claim is for a return of fees paid to an appellate practitioner. 

Typically the claim is that the attorney took money and did not produce an appeal, but this case is different.  "Plaintiff retained defendant pursuant to a flat fee retainer agreement entered into on April 3, 2008, to represent her in connection with an appeal of her recent conviction on charges of federal conspiracy to commit fraud, mail fraud, and theft from a program receiving federal funds (Mot. seq. 001, Neuman affid. [**2] at ¶ 5). The agreement took the form of a letter from defendant to plaintiff, dated April 3, 2008, and signed by both parties. Under the letter agreement, defendant would charge a total of $50,000.00 in legal fees for his representation, unless plaintiff agreed that it was ultimately not in her best interest to submit a post-verdict motion pursuant to Rule 29 or Rule 33, in which case the fee would be reduced to $40,000.00 (Mot. seq. 001, ex. B, letter agreement at 1).

The agreement provided for a series of payments and a schedule for the same. An initial payment of $7,500.00 was due immediately upon execution of the agreement, and, upon payment, defendant was to then undertake to review the record of the proceedings in order to evaluate whether a motion under Rule 29 or Rule 33 of the Federal Rules of Criminal Procedure should be submitted. If plaintiff opted to go forward with the motion, the agreement provided she would owe an additional $27,500.00 to defendant on or before April 14, 2008 (id. at 1-2). If plaintiff opted to forego the motion, the agreement provided, "then that amount of $27,500.00 may be submitted at a later date" (id. at 2). The letter agreement further stated that [**3] defendant would not file a notice of appearance until he had received a total sum of $35,000.00 (id.). The balance of the fee was to be due before the sentencing date. The amount of the balance depended on whether a a Rule 29 or Rule 33 motion was prepared; if it was the balance due would be $15,000.00 and if it was not, the balance due would be $5,000.00 (id.). The final [*4] paragraph of the letter agreement provides "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to the best of our ability" (id.)."
 

"The complaint alleges breach of contract by defendant because of his alleged failure to perform his obligations under the parties’ letter agreement. "A breach of contract claim against an attorney based on a retainer agreement may be sustained only where the attorney makes an express promise in the agreement to obtain a specific result and fails to do so" (Pacesetter Communications Corp. v Solin & Breindel, P.C., 150 AD2d 232, 236, 541 N.Y.S.2d 404 [1st Dept 1989]). Here, the letter agreement includes a provision stating "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to [**8] the best of our ability" (Mot. seq. 001, ex. A, letter agreement). There are no actionable express promises made in the retainer agreement defendant is said to have breached. Furthermore, plaintiff cannot rely upon alleged [*7] oral promises made to overcome the express language of the contract sued upon (see Pacesetter, 150 AD2d at 236).

To the extent plaintiff asserts causes of action for negligent representation and negligence, plaintiff is essentially alleging attorney malpractice (see Schwartz v Olshan Grundman, 302 AD2d 193, 199-200, 753 N.Y.S.2d 482 [1st Dept 2003]). To prevail on a cause of action for legal malpractice, plaintiff must satisfy three elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) actual damages (Leder v Spiegel, 31 AD3d 266, 267-268, 819 N.Y.S.2d 26 [1st Dept 2006]). In order to establish proximate cause, "plaintiff must demonstrate that ‘but for’ the attorney’s negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any ‘ascertainable damages’" (id.; citing Brooks v Lewin, 21 AD3d 731, 734, 800 N.Y.S.2d 695 [1st Dept 2005]). The failure to demonstrate proximate cause requires dismissal of a legal [**9] malpractice claim regardless of whether the attorney was negligent (Schwartz, 302 AD2d at 198).

Here, plaintiff does not offer sufficient proof establishing proximate cause. Plaintiff alleges that defendant’s conduct caused her to lose the opportunity to file a post-conviction motion under Federal Rules of Criminal Procedure 29 or 32 (Mot. seq. 002, plaintiff’s affid. at 19). However, plaintiff does not even attempt to provide prima facie proof that she would have succeeded if such a motion was filed. For this reason alone, plaintiff fails to establish the proximate cause element necessary to sustain a claim of malpractice. To the extent plaintiff seeks recovery under a theory that defendant negligently misrepresented that he would bring a post-conviction motion, such claim is extinguished by reference to the unambiguous terms of the retainer letter agreement, which clearly contemplates that a Rule 29 or Rule 32 may or may not [*8] be filed depending on defendant’s evaluation of the record and applicable law (Mot. seq. 001, ex. A, letter agreement). Plaintiff’s claim sounding in unjust enrichment is duplicative of her claim that she is entitled to a refund of the legal fees she paid to [**10] defendant."