Last week a United States Federal Court Judge from the Southern District of New York dismissed a legal malpractice claim of a woman who had been convicted of "misbranding drugs, conspiracy, mail fraud and wire fraud" and sentenced to three years in prison.She sued the law firm that unsuccessfully prepared and filed an appeal from the conviction. In dismissing the legal malpractice claim the Court relied on well settled principles of law. New York law prohibits legal malpractice claims arising from negligent representation in a criminal proceeding unless and until the conviction has been vacated or thrown out.

The reason for this rule is that in a legal malpractice claim arising out of a criminal proceeding, you must be able to prove that "but for" the negligent act of an attorney you would have been found innocent. In other words, a "so what" defense is considered fair if the same result would have occurred even with the best legal representation. Lasher v Stavis, 2018 WL 2976016