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Five years after Queens, N.Y., prosecutors agreed he was an innocent man, Lee Long, once a convicted rapist, is still looking for the compensation he feels he deserves for spending six years in prison. Long no longer has suing New York state foremost in his mind, however. Instead he is concentrating on a legal malpractice action against Barry Scheck, co-founder of the Innocence Project, and his firm, Cochran, Neufeld & Scheck. After a ruling from a magistrate judge earlier this month, the case — a jumble of personal attacks, arcane state law issues, and theories of liability that could extend to the Legal Aid Society — is now proceeding into the discovery phase. According to court filings, Long claims Scheck and his firm, which were hired to represent him on his civil claim, botched his lawsuit in the Court of Claims by missing a filing deadline by three days. He also alleges the firm was misleading in explaining the status of his suit, the fact that he might have a malpractice claim, and the reasons why his claim was not succeeding. Long is seeking $3 million in compensatory and punitive damages plus treble damages and attorney fees. Joel Berger, Long’s new attorney, expressed surprise that the defendants — famous for their tireless work on behalf of indigent clients — would want to litigate, never mind play hardball, as Berger claims the firm has done. “They are playing very, very rough over something that, if anything, I think they would feel embarrassed and ashamed of and would want to deal with quickly,” Berger said. “Given the fact that they obviously screwed up, the pugnaciousness of their opposition has surprised me.” Ronald Minkoff of Frankfurt Kurnit Klein & Selz, who is representing Scheck and his firm, said that Berger is exaggerating his client’s response and argued that, if anything, there should be no suit at all, owing to a state statute that would prevent Long from ever making a claim against the state because his conviction was vacated in “the interest of justice.” “Our position is that nobody did anything wrong because there was nothing that could have been done,” Minkoff said. Scheck declined to comment, since he is a defendant in the suit. Minkoff said that Scheck and his firm have Long’s best interest at heart but feel the malpractice suit is premature at best, if not a baseless attack on an attorney with a national reputation. Future rulings, possibly in the state Court of Appeals, could make the suit moot, he said. Moreover, Scheck also filed a federal civil rights lawsuit on Long’s behalf; Berger is now handling that still-pending litigation. Long, a 45-year-old resident of Alabama, began his ordeal with the law in June 1994, when he was arrested and charged with rape and robbery in the first degree. He was convicted less than a year later and sentenced to eight to 24 years in prison. Five years later, though, officials at the Queens District Attorney’s Office determined that they had convicted the wrong man. The Legal Aid Society, which had represented Long at trial, worked to free him in a new proceeding before New York Supreme Court Justice Joseph Golia. In June 2000 the judge vacated Long’s conviction “in the interest of justice.” Those five words set Long free but have since proved problematic. Under New York law, a defendant cannot sue the state for a wrongful conviction if the grounds of dismissal are “in the interest of justice,” rather than newly discovered evidence. While Scheck and his firm had a retainer agreement with Long to represent him on his civil claim, the Legal Aid Society remained the attorney of record on the criminal matter and was asked to help persuade Golia to amend the grounds of his ruling. Golia issued an amended order on May 28, 2002. Though it now stated that Long’s conviction was being vacated on the grounds of newly discovered evidence, it again said that the interest-of-justice standard applied. It is unclear why it took so long to obtain the new order, but Berger alleges that any delay is attributable to Scheck, since Legal Aid was not responsible for his civil claims. In court papers, though, the Scheck firm argues that “any damages alleged to have been sustained by Plaintiff were caused, in whole or in part, by the culpable conduct of the Legal Aid Society, and without any negligence on the part of any of the Defendants.” Susan Epstein, a Legal Aid attorney who represented Long in his efforts to vacate his conviction, declined to comment on the allegations. Pat Bath, a spokeswoman for the agency, said, “We are not involved in this proceeding, nor should we be.” She declined to comment further. At a hearing on the malpractice motion earlier this month before federal Magistrate Judge Steven Gold, Minkoff said he was considering adding Legal Aid as a third party. In a subsequent interview he declined to discuss that possibility further. THREE DAYS LATE Scheck filed Long’s suit at the Court of Claims on June 26, 2002, exactly two years — the statute of limitations — from the date on Golia’s original ruling. But the Attorney General’s Office argued that the judge had actually issued his order three days before the written ruling of June 26, 2000. Scheck informed Long of the potential statute of limitations problem and suggested that he file a federal civil rights case in order to “prepare for the worst.” He also wrote that Long might consider suing his Legal Aid attorney, Murray Singer, for malpractice, suggesting that Legal Aid could be liable for failing to discover evidence that corroborated an account of an alibi witness — facts that later figured largely in Long’s release. Such a claim, Scheck wrote, “is worth exploring,” though he said he could not do so because his partner, Peter Neufeld, was the brother of Russell Neufeld, then the head of Legal Aid’s criminal division. In August 2003 the Court of Claims determined that Long’s complaint was late by three days. It also noted that Golia had considered the ground of “newly discovered evidence” to be a “nettlesome legal problem” and had hence ruled in the interest of justice. Moreover, Long’s complaint was not personally verified by Long, as state law requires, but instead by Scheck. Scheck continued the case by appealing the Court of Claims’ ruling to the Appellate Division, Second Department. In November 2004, before the appellate arguments, Scheck again wrote to Long, explaining that if his firm lost the appeal, “another judge could determine that we committed legal malpractice in representing you in the Court of Claims.” He suggested that Long consult another attorney if the appeal failed, though he said there would be “no hard feelings whatsoever” if he consulted another attorney right away. Long turned to Berger, a veteran attorney who has litigated numerous death penalty cases. Berger filed the malpractice claim in May. Soon thereafter, the Second Department upheld the Court of Claims ruling, stating Long’s claim for compensation would have been rejected even if it had been timely. Earlier this month in the malpractice case, Gold ruled that Berger could depose members of Scheck’s firm and Legal Aid attorneys, as well as a disgruntled former paralegal who had left the firm on bad terms but had signed a non-disparagement agreement.
Tom Perrotta is a reporter for the New York Law Journal. He can be contacted at [email protected].

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