In a recent decision an appellate court covering Manhattan upheld a client's right to a jury trial on the claim that he received negligent advice from his attorney that he could leave the U.S.and would not be deported when he returned, as a result of pleading guilty to multiple federal election law violations. The client (lawful permanent resident status) claimed that he traveled abroad in reliance on a written opinion prepared by his attorney that advised it "was unlikely he would be deported as a result of his plea and that, if he were placed in removal proceedings, he could seek a waiver from admissibility." When the client returned to the U.S., he "was detained, placed in removal proceedings, and incarcerated for approximately four months." Now the client wants to be compensated for the economic losses he suffered due to his imprisonment. (Money damages for emotional distress suffered due to legal malpractice is not allowed under New York State law.)

The attorney defendant succeeded in dismissing the client's claims that he pleaded guilty to violations of federal election law based on negligent advice because there was no claim that the client was indeed innocent of the charges. If you dispute the validity of a criminal conviction in the context of a legal malpractice claim--you must claim and be able to prove that you were indeed innocent of the charge. However, the defendant attorney will have to stand trial on the claim that he negligently advised the client could travel abroad without being deported or detained. Sehgal v DiRaimundo, 2018 WL 4778974