Legal malpractice claims against attorneys have been documented as early as the 15th century.1 Despite its early roots in the English Common Law, there has been a dearth of litigation alleging professional negligence in the defense of a client accused of a crime.2 Indeed, the New York Court of Appeals has acknowledged that criminal malpractice cases are “unique.”3 In New York, a specific pleading requirement, discussed below, essentially bars legal malpractice actions against defense counsel in the overwhelming majority of criminal matters, so much so, that it is fair to say a successful claim of legal malpractice in a criminal case must be viewed as a rarity.
The basic elements of a legal malpractice claim have remained constant through the years.4 In order to establish a prima facie case of legal malpractice, a plaintiff must first demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.5 For example, in Meralla v. Goldenberg,6 the Appellate Division, First Department, recently rejected a claim of legal malpractice when the plaintiff claimed that the Legal Aid Society had been negligent based on the delay in prosecuting the appeal of the plaintiff’s conviction. The first trial resulted in a conviction which was reversed. A retrial in 1990 also resulted in a conviction. However, the second conviction was later reversed in 1996 on the ground that certain factual issues at the second trial should not have been re-litigated based upon collateral estoppel.
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