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In a decision that has the effect of extending the statute of limitations for malpractice arising out of a criminal defense, the New York Court of Appeals on Thursday rebuffed The Legal Aid Society and held that the clock begins running when a proceeding is terminated, not when representation ceases. The unanimous court distinguished between attorney malpractice in civil and criminal cases, and concluded that the “unique nature of legal malpractice claims” stemming from criminal prosecutions warrants different treatment from those arising out of civil matters. “Although our holding may extend the time in which dissatisfied criminal clients can assert malpractice claims against their attorneys, the overriding policy concerns discussed [in a prior case] mandate that an action may not be brought before the criminal proceeding has been terminated,” Judge Richard C. Wesley wrote for the court in Britt v. The Legal Aid Society Inc., 125. The matter resulting in this decision involves a defendant named Danny Britt, who spent four years in prison for rape until his conviction was overturned for ineffective assistance of counsel. At issue was whether the three-year statute of limitations period began when the plea was vacated or when Legal Aid was removed from the case. Britt was arrested on July 3, 1990, in Manhattan and subsequently indicted for first-degree rape, first-degree sodomy and first-degree sexual abuse. The Legal Aid Society, through Norman Bock of Manhattan, was assigned to represent the defendant. The defendant alleged that he insisted on going to trial because he was innocent, and informed Bock that he did not want him to try the case because he appeared unprepared. When the trial court refused, on the day of trial, to relieve The Legal Aid Society and Bock, Britt pleaded guilty to attempted first-degree rape. Almost immediately, Britt submitted a pro se motion claiming the plea was coerced. His motion was denied, and he was sentenced in March 1991 to a 4-to-8-year state prison term. The trial court, however, relieved Legal Aid and assigned a private attorney to pursue Britt’s challenge to his guilty plea. PLEA VACATED On Sept. 30, 1994, Britt’s guilty plea was vacated after a judge found that Legal Aid failed to prepare for trial and pressured the defendant into pleading. On March 7, 1996, the indictment was dismissed when the complaining witness could not be located. On Sept. 27, 1997, Britt filed a malpractice claim. Legal Aid sought to dismiss the suit as untimely, contending the claim accrued on May 13, 1991, the day its attorney was removed from the case. Britt argued that since a defendant cannot initiate a legal malpractice suit until he can assert his innocence, the statute of limitations could not begin running until, at the earliest, Sept. 30, 1994, when the plea was vacated, or even as late at March 1996, when the indictment was dismissed. The Appellate Division, 1st Department, found that the statute of limitations began to run on Sept. 30, 1994. On Thursday the Court of Appeals agreed with the 1st Department’s finding that the claim was timely, but held that the cause of action accrued when the indictment was dismissed. Vacatur of the conviction and remand, the court said, did not trigger the statute of limitations because at that point a conviction on the indictment remained a possibility. MUST ALLEGE INNOCENCE “It is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof,” Judge Wesley wrote for the court. “A criminal legal malpractice plaintiff cannot assert innocence while the criminal charges remain pending.” Thursday’s decision clarified the court’s 1987 precedent in Carmel v. Lunney, 70 NY2d 169. In Carmel, the court held that to pursue a legal malpractice claim stemming from a criminal conviction the “plaintiff must allege his innocence or a colorable claim of innocence” of the underlying offense. But until Thursday, it had never clearly stated when such a claim accrues. On the appeal, Peter I. Livingston, of Rosen & Livingston in Manhattan, who represents Legal Aid, maintained that under Britt’s theory criminal defense attorneys could, theoretically, be perpetually on the hook for a potential malpractice claim. He argued that the attorney would have no way of knowing if or when the statute of limitations expired. Vida M. Alvy, of Alvy & Jacobson in Manhattan, who is counsel for Britt, countered that Legal Aid’s theory would essentially immunize criminal defense attorneys from malpractice claims, since the appellate and post-conviction processes routinely extend beyond three years. In its 6-0 opinion, the Court of Appeals said the standard established in Carmel, and simple fairness, requires that the plaintiff have a “reasonable opportunity” to assert a claim. “We require that the criminal client bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt,” Judge Wesley said. The Court suggested that imposition of that “unique burden” necessitates a certain leeway on statute of limitations issues. Alvy said Thursday that the thrust of the decision is that “a person who has been unjustly convicted will have his day in court.” She said she doubts that the ruling will, as the defense community had insisted, “open the floodgates” to malpractice claims against criminal defenders.

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