Equitable estoppel is an argument which posits that (for example) the statute of limitations should  not bar an action, because defendant led plaintiff on, and kept plaintiff from timely filing a case.  In WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION, et al,  the argument succeeds for plaintiff.

"The statute of Limitations applicable to actions alleging conversion is three years (CPLR 214 [3]; Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899 [1st Dept 2000]), which begins to run at the time of the alleged theft even if the plaintiff is then unaware of it (Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899, supra.). Since the Check was deposited into the Beneficial account on March 11, 2005, Harris had until March 11, 2008 to bring her conversion claim. Thus, her conversion claim, commenced on July 7, 2008, more than three years after the alleged taking of the property occurred, is untimely (Close-Barzin v. Christie’s, Inc.., 51 A.D.3d 444, 857 N.Y.S.2d 545 [1st Dept 2008]).

However, as argued by Harris, equitable estoppel may be invoked to defeat a statute of limitations defense where the "’plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action’" (Kaufman v Cohen, 307 AD2d 113, 122, 760 N.Y.S.2d 157 [1st Dept 2003] quoting [*8] Simcuski v Saeli, 44 NY2d 442, 448-449, 377 N.E.2d 713, 406 N.Y.S.2d 259 [1978]). The doctrine of equitable estoppel "requires proof that the defendant made [**7] an actual misrepresentation or, if a fiduciary, concealed facts which he was required to disclose, that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action" (Kaufman v Cohen, 307 AD2d at 122; see also Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 490 N.Y.S.2d 190 [1st Dept 1985], affd 67 NY2d 981, 494 N.E.2d 106, 502 N.Y.S.2d 1001 [1986]). Here, Harris alleges that Dalley willfully concealed his involvement as a partner of Beneficial and a signatory of the checks that dispersed the underlying funds from Beneficial’s account, which prevented the discovery of such information in a timely manner. The record relied on by Dalley to oppose Harris’s equitable estoppel argument raises issues of fact, inter alia, as to whether Harris was aware of Dalley’s relationship with Beneficial, prior to the expiration of the statute of limitations, and therefore whether the doctrine of equitable estoppel should be applied in the within circumstances. In particular, Dalley alleges that three (3) months after the closing date, Harris received a Beneficial check dated May 5, 2005, signed by Dalley, raising a factual issue as to whether Harris was aware of Dalley’s connection to Beneficial, [**8] prior to the expiration of the statute of limitations. Thus, that branch of Dalley’s motion to dismiss the fraud and conversions claims on the grounds of the statute of limitations is denied."

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."
 

Intentional infliction of emotional distess is rarely alleged alongside a legal malpractice claim, but here in WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION,, et al,  it is, to no avail.

"In its complaint, WaMu alleges that, on February 10, 2005, Harris and Mar, owners of the Subject Premises, conveyed title thereof to Young; that, in conjunction with this transaction, Young borrowed $800,000 from WaMu, and executed and delivered a mortgage to WaMu, which was recorded in the City Register of the City of New York on May 12, 2005 (the WaMu Mortgage). WaMu claims that the deed was misplaced or lost and not recorded, and that Mar, Harris and/or Young have failed and continue to refuse to re-execute a deed. WaMu therefore seeks, pursuant to Article 15 of the Real Property Actions and Proceedings Law, a judgment declaring defendant Young as the rightful owner of the Subject Premises.

In the third-party action, Harris alleges a fraudulent lending scheme involving third-party defendants Figaro Dezil (Dezil), a loan consultant from Washington Mutual Bank, Cal Stuart (Stuart), the title closer from Union National Abstract LLC (Union), and John A. Dalley, Esq. [**3] (Dalley), counsel obtained by Stuart and/or Dezil for Harris and Young. Harris asserts that Dezil and Dalley induced her to engage in a sale of her property located at 487 Manhattan Avenue, New York, New York to Young, which would include a long-term lease and an option to repurchase, rather than a refinancing. She also alleges, inter alia, that, at the loan closing, Dalley did not have Young sign an option agreement, that [*5] Dalley received a check for $9,500, from which he paid Dezil an illegal mortgage placement fee of 1% of the mortgage proceeds, and that the mortgage payoff check (the Check) made payable to Americas Servicing Company (ASC), was given to Stuart. Harris further asserts that the Check was not delivered to ASC, but was instead fraudulently endorsed by Stuart, and deposited into an account maintained at North Fork by Beneficial Settlement Services (Beneficial), which resulted in the inappropriate retention of the loan proceeds by Dezil, Dalley and Stuart. She also complains that the acceptance and payment of the Check by North Fork Bank (North Fork) and Citibank resulted in the theft of its underlying funds."
 

"However, that branch of Dalley’ s motion for summary judgment dismissing Harris’s claim for intentional infliction of emotional distress is granted. To establish a claim for the tort of intentional infliction of emotional distress, "a plaintiff must establish … extreme and outrageous conduct; … intent to cause, or disregard of a substantial probability of causing, severe [**10] emotional distress; … a causal connection between the conduct and the injury; and … severe emotional distress" (Suarez v Bakalchuk, 66 AD3d 419, 887 N.Y.S.2d 6 [1st Dept 2009]; see also Howell v New York Pout Co., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp, 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232 [1983] [internal quotations marks and citation omitted]).

Here, Dalley demonstrates that his alleged conduct, consisting of, inter alia, inducing Harris to sell her house to Young, not disclosing his signatory authority in the Beneficial [*11] account to Harris, and authorizing the disbursement of the loan proceeds from the Beneficial account, while deplorable, if true, did not rise to the level of being so extreme, outrageous and beyond the bounds of human decency to constitute the requisite conduct necessary to sustain a claim for intentional infliction of emotional distress under prevailing case law (see Murphy v American Home Prods. Corp., 58 NY2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232, supra). Further, Dalley establishes that [**11] Harris failed to make any evidentiary showing that the alleged conduct caused any mental or physical symptom or injury that would indicate the existence of severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350, supra; see also Elbogen v Esikoff, 266 AD2d 15, 697 N.Y.S.2d 614 [1st Dept 1999]).

Additionally, a cause of action for intentional infliction of emotional distress should not be entertained "where the conduct complained of falls well within the ambit of other traditional tort liability" (Fischer v Maloney, 43 NY2d 553, 558, 373 N.E.2d 1215, 402 N.Y.S.2d 991 [1978]). As noted by Dalley, the alleged conduct attributed to him by Harris falls entirely with the scope of Harris’s more traditional tort claims for, inter alia, fraud and breach of fiduciary duties.

Therefore, Dalley’s motion, in Motion Sequence No. 009, is granted only to the extent of granting summary judgment dismissing Harris’s fourteenth cause of action for intentional infliction of emotional distress as asserted against him."
 

It is often said (and sometimes sanctimoniously) that the legal malpractice claimant is simply trying to gain an advantage, or to avoid paying legal fees.  Here, in Matter of Price ; 2011 NY Slip Op 05814 ; Decided on July 5, 2011 ; Appellate Division, Second Department we see a different use of the claim.  "Respondent" is an attorney-escrow agent.

"In or about September and October 2005, SDLH was engaged in negotiations to sell its business to Great South Bay Automotive, Inc. (hereinafter Great South Bay). At or about that time, the respondent represented SDLH. Great South Bay, whose principals were Robert Gerstacker and Rob Despres, was represented by Richard Bartel.

Prior to the closing, a Notification of Sale, Transfer, or Assignment of Bulk, dated September 20, 2005 (hereinafter the Notification), was sent to the New York State Department of Taxation and Finance (hereinafter the DTF). The respondent was listed in the Notification as escrow agent in connection with the sale of SDLH. [*2]

At the closing, the respondent signed an escrow agreement wherein he acknowledged, inter alia, that he received a check payable to himself, as attorney, in the amount of $82,393.02. From this money, the respondent further acknowledged that he would undertake to satisfy "the State, Suffolk Auto and Exhaust Warehouse." The reference to "the State" in the escrow agreement was to a tax liability owed by SDLH to New York State.

In or about February 2006, New York State issued a Notice of Determination assessing $58,890.03 against Great South Bay for the unpaid taxes of SDLH. By order to show cause, summons, and verified complaint dated April 26, 2006, Great South Bay and its principals commenced an action in the Supreme Court, Suffolk County, against SDLH, its principals, and the respondent entitled Great South Bay Automotive, Inc. v SDLH Automotive Inc., under Index No. 12040/06. The complaint alleged, inter alia, breach of contract due to the failure of SDLH and the respondent to satisfy the tax liability owed to New York State. In addition, there were causes of action to recover damages for fraud and breach of fiduciary obligations on the part of the respondent, as escrow agent, based upon his failure to satisfy the tax liability pursuant to the escrow agreement.

The respondent represented SDLH, its principals, and himself in the action. On behalf of SDLH and himself, the respondent submitted a verified answer sworn to on May 23, 2006. He thereafter submitted an affidavit in opposition to the order to show cause, sworn to on May 24, 2006, on behalf of SDLH and himself. In his affidavit in opposition, the respondent asserted, inter alia, that "at no time did your deponent receive any money from sales tax. There was no known debt to the State." The respondent further asserted that, pursuant to the Agreement for the sale of SDLH, he was required to hold only $1,000 in escrow to guarantee that SDLH received a release from New York State in connection with "unpaid sales tax" due. Great South Bay moved for summary judgment by notice of motion dated September 14, 2006.

By summons and third-party complaint dated September 25, 2006, and October 3, 2006, respectively, the respondent commenced a third-party action on his own behalf against Richard Bartel, attorney for Great South Bay, and its principals, entitled Price v Bartel. The respondent [*3]alleged, inter alia, that Bartel committed legal malpractice in his representation of Great South Bay in its purchase of SDLH.

The order also dismissed the third-party action, reciting that the third-party complaint "fails to state any cognizable cause of action and . . . Price lacks standing to assert certain claims." Specifically, the Supreme Court stated that "Price’s claim for malpractice must fail because he lacks standing to assert such claim against Bartel as he was not in an attorney-client relationship with him. Moreover, on the merits, Price has failed to set forth any of the elements of a prima facie case of legal malpractice [citations omitted]."

The Law sites are consistently filled with stories of partners leaving firm A for firm B, and sometimes taking assoicates with them. Law firms fold and are re-cast as new firms. How does this restelss movement affect legal malpractice clients?

In The New Kayak Pool Corp. v Kavinoky Cook Llp ;2010 NY Slip Op 05176 ;Decided on June 11, 2010 ;Appellate Division, Fourth Department we see the Third Department’s short-form answer.
 

"Plaintiffs commenced this legal malpractice action seeking damages arising from defendants’ alleged malpractice in failing to ascertain the existence of insurance coverage for the parties sued by plaintiffs in the underlying trademark infringement action. The same attorney represented plaintiffs throughout the course of that action. That attorney began representing plaintiffs in 1999 when he was a partner in defendant Kavinoky Cook LLP (Kavinoky). When he subsequently joined defendant Hodgson Russ, LLP (Hodgson), plaintiffs executed a consent to change attorney form in June 2003, thereby substituting Hodgson for Kavinoky as plaintiffs’ attorney of record in the underlying action. That action settled in February 2004 and the instant action was commenced in January 2007.

Supreme Court properly denied the motion of Kavinoky seeking summary judgment dismissing the amended complaint and cross claims against it. Kavinoky contends that the action against it is time-barred because it was commenced more than three years after the attorney in question left Kavinoky and the consent to change attorney form was executed by plaintiffs (see CPLR 214 [6]). We reject that contention inasmuch as the statute of limitations was tolled by the doctrine of continuous representation during the time that the same attorney represented plaintiffs in the underlying action (see [*2]Waggoner v Caruso, 68 AD3d 1, 7, affd ___ NY3d ___ [May 11, 2010]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535)"

A prime worry for the legal malpractice practitioner, on either side of the aisle, is whether there is legal malpractice insurance. For the defendant, it is paramount; for the plaintiff it is significant. Much thought has gone into how to determine whether the target defendant has adequate [or indeed, any] insurance, and planning has to go into the target’s application for insurance." One prime weapon that the insurer has is the "prior acts" doctrine. It says in essence that you must report all past prior acts that one might reasonably believe could lead to a law suit for legal malpractice, whether it has been started or not. We remember one managing attorney who shouted at least once a week: "Put the Carrier on Notice!" Sometimes he was right. Here, in Executive Risk Indemnity v, Pepper Hamilton, LLP, we see Justice Jone’s decision on this issue: "We are asked to determine, under Pennsylvania law, whether excess insurers Executive Risk Indemnity Inc. and Twin City Fire Insurance Company, based upon their prior knowledge exclusions, and Continental Casualty Company, based upon rescission of its policies, were entitled to summary judgment declaring that they have no obligation to indemnify defendants Pepper Hamilton LLP and one of its members W. Roderick GagnÉ (collectively, the law firm defendants) in actions asserted against them for, among other claims, professional malpractice." "Executive Risk commenced this action against the law firm defendants and Westport, seeking a declaration that it had no obligation to indemnify defendants in the underlying actions. The law firm defendants counterclaimed for a declaration in their favor and brought third-party claims against Twin City and Continental Casualty. Executive Risk and Twin City relied upon Westport’s prior knowledge exclusion, expressly incorporated into their policies, and Continental Casualty cross-claimed for rescission of its excess policies for 2002-[*4]2003 and 2003-2004. " "Here, it is undisputed that the law firm defendants knew of SFC’s securities fraud months prior to the effective dates of the Executive Risk and Twin City policies. The courts below noted that GagnÉ subjectively believed, and informed Mr. Wilcox at least one month prior to the submission of one of the law firm’s insurance applications, that he and the law firm could be subject to a lawsuit from their representation of SFC. Such a belief, although subjective, was also reasonable, but Pepper Hamilton did not provide that information to its insurers. Given the law firm defendants’ role in the securitization of the loans and GagnÉ’s close involvement with SFC, a reasonable attorney with the law firm defendants’ knowledge should have anticipated the [*5]possibility of a lawsuit, particularly when millions of dollars may have been lost from activities of which they were aware. Here, the law firm’s knowledge of its client’s fraudulent payments prior to its application for excess coverage coupled with the fact that a reasonable attorney would have concluded that the law firm defendants would likely be included in the litigation because of their role in their client’s business satisfy the test of Coregis and create an obligation for the law firm to inform its insurers of this potential litigation. Contrary to the Appellate Division’s holding, the prior knowledge exclusion in this case does not require the known of act, error, omission or circumstance to be "wrongful conduct on the part of the insured" (Executive Risk Indem. Inc. v Pepper Hamilton LLP, 56 AD3d 196, 204 [1st Dept]). It excludes coverage of "any act, error, omission, circumstance . . . occurring prior to the effective date of the [policy] if any [insured] at the effective date knew or could have reasonably foreseen that such act, error, omission, circumstance . . . might be the basis of a [claim]." Here, on October 27, 2002, the effective date of the Executive Risk and Twin City policies, the law firm defendants knew of acts that occurred prior to that date, which they could have foreseen to be the basis of a claim. Thus, the prior knowledge exclusions apply to those policies.

The Third Department gives a nice analysis of the law of "account stated" in its decision, Antokol & Coffin v Myers ;2011 NY Slip Op 06051 ;Decided on July 28, 2011 ;Appellate Division, Third Department .
 

""’An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’" (J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an account stated "with proof that a bill . . . was issued to a client and held by the client without objection for an unreasonable period of time" (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendant as well as unpaid invoices for legal fees dated between September 1995 and December 1996. Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and that defendant did not object to the bills until plaintiff commenced this action. Defendant testified that she did not remember receiving monthly bills but, in her prior deposition testimony, acknowledged that she thought she had received a bill most months. Although defendant claimed to have had "constant conversations about the bills" with Antokol, and Antokol admitted that he made efforts to get her to pay, including offering a 10% discount in February 1996, he testified that defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception of one specific objection to work completed by one of Antokol’s colleagues, which defendant ultimately agreed to pay, defendant did not claim to have made objections to any specific bill, despite the language at the end of each bill stating, "The above information will be deemed correct unless objection is made within 30 days." Further, defendant admittedly made no written objections to the bills. Under these circumstances, we agree with Supreme Court that defendant’s general claims of verbal refusals to pay did not constitute a specific objection sufficient to defeat plaintiff’s cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P. Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). "

"Turning to the adequacy of the services billed for, we agree with Supreme Court that the record demonstrates that plaintiff provided competent representation in a difficult matrimonial matter. Antokol’s failure to establish grounds for divorce in defendant’s favor, albeit clearly a point of frustration for defendant, was irrelevant, as fault did not affect the equitable distribution of marital assets (see Howard S. v Lillian S., 14 NY3d 431, 435-436 [2010]). Defendant’s assertions that Antokol should have presented expert testimony to increase her share of the marital estate and that he was not prepared for trial are counterbalanced by record evidence that Antokol’s decisions were part of his trial strategy and his claims that defendant’s refusal to follow his advice at times interfered with his ability to achieve better results for her. In sum, the record evidence fully supports Supreme Court’s finding that the alleged inadequacies of Antokol’s representation are insufficient to undermine plaintiff’s right to be paid for its services (see Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d at 916). "

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."