This is an issue that has become controversial. In most states, a criminal defendant who was convicted cannot sue for legal malpractice unless he establishes “actual innocence” or in New York, a colorable claim of innocence. Roy v. The Law Offices of B. Alan Seidler, P.C., (17 Civ. 5644 S.D. N.Y.) is one such case. Roy was convicted of wire fraud and conspiracy to commit wire fraud and was sentenced to 87 months in prison. His conviction was affirmed on appeal. His legal malpractice complaint, which alleged several alleged failings by his trial counsel, was dismissed.
The court explained the rule in this way:
Plaintiff’s legal malpractice claim must be dismissed. As the Second Circuit has repeatedly held, “under New York law, a plaintiff cannot state a malpractice claim against his criminal defense attorney if his conviction `remains undisturbed.'” Hoffenberg v. Meyers, 73 F. App’x 515, 516 (2d Cir. 2003) (quoting Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446, 718 N.Y.S.2d 264 (2000)); see also Abuhouran v. Lans, 269 F. App’x 134, 135 (2d Cir. 2008) (“Thus, to succeed, [plaintiff] would have had to show innocence or a colorable claim of innocence.”).