Not Solely Responsible, Not Liable For Malpractice

A criminal defendant was convicted at trial of multiple counts of sexual conduct against a child. The conviction was reversed based on a finding of ineffective assistance of counsel.

The defendant, represented by new counsel, was acquitted at a second trial.

She then sued her first counsel for legal malpractice.

The New York Appellate Division for the Second Judicial Department held that the trial court should have granted summary judgment to the defendant attorney. 

Here, the defendant met his initial burden of demonstrating, prima facie, that the plaintiff is unable to prove the element of causation. Specifically, the defendant submitted admissible evidence demonstrating that the plaintiff’s convictions after her first trial were not due solely to the defendant’s conduct, but were also the result of other factors, including those arising from “some consequence of [her] guilt” (Britt v Legal Aid Socy., 95 NY2d at 447). The evidence submitted by the defendant included graphic testimony of the plaintiff’s own children, admitted into evidence at the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them. In opposition, the plaintiff failed to raise a triable issue of fact as to whether her convictions after the first trial were due solely to the defendant’s conduct (see id.)

The court further held that “the plaintiff’s claims for nonpecuniary damages, including physical and psychological injuries allegedly sustained while she was incarcerated following the first trial, are not recoverable in a legal malpractice action.”  (Mike Frisch)