Legal Malpractice

Criminal Law and Legal Malpractice Law Intersect

By (Andrew Lavoott Bluestone)

Criminal law and legal malpractice law seldom intersect.  One reason is an almost complete ban on criminal defendants suing their defense attorneys.  In order to sue, one must show "actual innocence" which is customarily demonstrated by reversal upon appeal or exoneration.  Since that is a rare occurrence, there is little vitality to criminal defense legal malpractice.

Here, the view is obverse, and a real estate broker [perhaps an investor ?] sues an attorney involved in the real estate transaction for legal malpractice.  The kicker is that the attorney has been arrested upon a felony complaint, and now awaits the action of the Grand Jury.

In  THE CORCORAN LAW GROUP, L.L.C. et ano., -against- JANE Y. POSNER, ESQ. ;09 Civ. 1861 (WHP)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 we see that the Court grants a stay of legal malpractice proceedings to see what happens to the felony complaint.  In criminal prosecutions, the DA files a complaint, in this case for a felony,  which may not serve as an accusatory instrument for trial upon a felony.  The Constitution and the Bill of Rights requires the action of the Grand Jury which must issue a true bill, otherwise known as an indictment.
 

"In determining whether a stay is appropriate, courts balance the following factors: (1) the extent to which the issues in the criminal case overlap with those presented in the civil case; (2) the status of the case, including whether the defendant has been indicted; (3) the interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused [*3] by a delay; (4) the private interests of and burden on the defendant; (5) the public interest; and (6) the interest of the Court in the efficient management of cases. See, e.g., Transworld Mechanical, 886 F. Supp. at 1139.
"[D]istrict courts in this Circuit generally grant the extraordinary remedy of a stay only after the defendant seeking a stay has been indicted." Sterling Nat'l Bank, 175 F. Supp. 2d at 576 (citation and internal quotation marks omitted). However, at least one district court in this Circuit has noted that the filing of a felony complaint should be treated as the substantial equivalent of an indictment. See Parker v. Dawson, No. 06-CV-6191 (JFB), 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4 (E.D.N.Y. Aug. 27, 2007). The [*4] question is "whether the criminal proceedings have substantially progressed beyond the investigatory stage to the filing of formal charges against a particular defendant, so that there is an imminent likelihood that the defendant will be subject to a criminal proceeding, including a trial, in the very near future." Parker, 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4 (collecting cases).

Corcoran submitted its supporting deposition to the Putnam County DA on October 30, 2008, and a felony complaint was filed four months later. Therefore, it is evident that the "criminal proceedings have substantially progressed beyond the investigatory stage." Parker, 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4. Accordingly, this factor weighs in favor of a stay."

Full post as published by New York Attorney Malpractice Blog on July 08, 2009 (boomark / email).