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New York Requires That the Conviction Be Vacated Before You Can Sue for Legal Malpractice

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.”).

Plaintiff’s conviction, at present, is undisturbed. In 2015, the Second Circuit denied Plaintiff’s direct appeal. See United States v. Roy, 609 F. App’x 16 (2d Cir. 2015); United States v. Roy, 783 F.3d 418 (2d Cir. 2015). In 2017, the Honorable Colleen McMahon denied Plaintiff’s motion to vacate his conviction and grant a new trial either under 18 U.S.C. § 2255 or Federal Rule of Criminal Procedure 33. See Roy, 2017 WL 5126138, at *10. Plaintiff’s Complaint does not allege actual innocence. Accordingly, Plaintiff’s claim for legal malpractice cannot be maintained. See Oklu v. Weinstein, No. 15 Civ. 6488 (RWS), 2016 WL 1060335, at *2 (S.D.N.Y. Mar. 11, 2016) (dismissing legal malpractice claim when “Plaintiff’s conviction remains undisturbed” and “his Complaint lacks any colorable allegation of innocence”).

Again, this issue remains controversial.

Ed Clinton, Jr.