Legal Malpractice in a Criminal Proceeding as a Cause of Action in New York

In New York, a person who has been convicted of a crime and believes their attorney mishandled the case may consider bringing a legal malpractice claim. However, the standards are much stricter in criminal cases than in civil ones. Courts require more than just proof that the attorney made a mistake. They want to be sure that the client was truly harmed and that justice would have resulted in a different outcome but for the attorney’s actions. This article explains the key elements of this cause of action.

The Plaintiff Must Show Actual Innocence

One of the most important and unique requirements for a legal malpractice claim following a criminal conviction is that the plaintiff must prove actual innocence. This means the person suing their former lawyer must show that they did not commit the crime they were charged with. It is not enough to say the lawyer was negligent or unprepared—the plaintiff must go further and show that they were wrongfully convicted of a crime they did not commit.

This is a high bar because courts are cautious about re-litigating criminal cases in civil courts. If the criminal conviction was valid, then any harm suffered might not have resulted from the lawyer’s conduct but rather from the client’s own actions. Actual innocence is essential to demonstrate that the attorney’s failure directly caused the wrongful conviction.

The Criminal Case Must Be Overturned

Before someone can sue their former defense lawyer, their criminal case must have ended in their favor. This could mean the charges were dismissed, the conviction was overturned, or they were acquitted on appeal. Courts will not allow a legal malpractice claim to move forward while the criminal conviction is still standing, even if there is strong evidence that the attorney made serious errors.

This rule reflects the legal system’s principle that one cannot profit from their own wrongdoing. Only after the criminal case ends in a way that removes the conviction can a person claim they were wronged by their lawyer’s performance.

The Lawsuit Must Be Filed After Termination of the Criminal Case

The time limit—or statute of limitations—for filing a legal malpractice claim in a criminal context does not start until the criminal case has ended in the plaintiff’s favor. This gives individuals time to pursue appeals or motions to vacate their convictions before turning to a civil claim against their former attorney.

Conclusion

Legal malpractice in a criminal case is difficult to prove in New York. To succeed, a person must show they were actually innocent of the charges and that their conviction has been overturned or otherwise resolved in their favor. These strict requirements reflect the seriousness of accusing an attorney of mishandling a case that resulted in a criminal conviction. However, when these elements are met, the law offers a path to hold negligent attorneys accountable and provide justice to individuals who were wrongfully convicted.

Find the Law

“To prevail on a legal malpractice claim arising from a criminal conviction which was overturned, a plaintiff must establish that he or she was actually innocent of the criminal charges. See Britt v. Legal Aid Society, Inc., 95 NY2d at 447-448; Carmel v. Lunney, 70 NY2d 169, 173-174 (1987). It is for this reason that the cause of action for legal malpractice in a criminal proceeding does not accrue until the criminal proceeding is terminated since “[I]t is only when the criminal proceeding has terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof.” Britt v. Legal Aid Society, Inc., 95 NY2d at 448.” Gersten v. Lemke, 2008 N.Y. Slip Op. 30470, 3 (N.Y. Sup. Ct. 2008)