Daly v. Peace, 863 N.Y.S.2d 770, 2008 N.Y. Slip Op. 06955 (2 Dept.)
NY Underlying criminal action
Facts: Plaintiff brought an action against his former defense attorney for legal malpractice after, allegedly, being wrongfully convicted. The attorney made a motion to dismiss plaintiff’s complaint on the grounds that the client could not prove he was innocent of the charges brought against him in the underlying action. The trial court granted the attorney’s complaint and plaintiff appealed the dismissal.
Issue: Did the trial court correctly dismiss plaintiff’s malpractice complaint because of his inability to prove his innocence with regard to the claims asserted against him in the underlying action?
Ruling: The Supreme Court of New York, Appellate Division, Second Department, held that:
(1) The trial court has correctly assessed that the plaintiff could not establish his innocence with regard to the charges made against him in the underlying action, and, therefore
(2) The Plaintiff had no cause of action for legal malpractice against his criminal defense attorney, unless and until he ultimately succeeded in his attempts to have the underlying conviction reversed.
Lesson: A former client, even in an underlying criminal action, can only prevail on a claim for legal malpractice by successfully applying the “suit within a suit” method: No presumption of innocence is available to those convicted in the first place, purportedly, as a result of negligent representation.