In the criminal law world, Padilla v. Kentucky, 130 S.Ct 1473, 176 L.Ed 2d 284 (2009), has worked a mini-revolution. In Padilla the U.S. Supreme Court decided that criminal defendants are due full advice from their criminal defense attorneys on the collateral punishment that may accompany a plea of guilty. There are many collateral punishments that could deploy, and Padilla dealt with deportation as one collateral punishment in addition to jail, probation or a fine.

Based upon Padilla, counsel must advise their clients that a plea of guilty will lead to deportation, or if the law is ambiguous, attorneys must advise the client that deportation “may” follow the plea. Counsel must also give immigration advice to the criminal defendant-client.

The court held that an ineffective assistance of counsel claim under the Sixth Amendment can be based upon the attorneys’ failure to inform the client of the risk of deportation. This ruling has been applied retroactively.

The application of Padilla presents a conundrum to the criminal defense attorney. The situation will arise only after the client has pled guilty. At that point, for the criminal defense attorney the case is finished, and the file put away. Some time later, perhaps long after, a call or a letter is received, with new counsel asking about the events leading to the plea of guilty. Was the client advised of the collateral potential deportation after conviction? Was there a conference? Are there notes? Does the file reflect that he was given the correct advice?

If the attorney is unsure of whether there was compliance with the directions in Padilla, there will be consideration of both the ethical obligations and the potential of legal malpractice as the former client starts a Criminal Procedure Law §440 motion. Disciplinary and ethical aspects that govern the conduct of the defense attorney are outside the scope of this article.

To be considered by the attorney is whether he has an ethical obligation to support the client in the quest for vacatur, and whether the obligation to zealously defend a client requires that the attorney responsively or independently offer assistance, especially in the form of sworn testimony on behalf of the client. There may be disciplinary consequences for ineffective assistance of counsel to be considered, too.

For the purposes of this article we will presume that there was a failure to advise the client of the collateral aspects under Padilla, and that there would have been no plea of guilty had deportation been explained to the client. Assuming that the client has now started the CPL §440 proceedings, can a client who has pled guilty succeed against the attorney in legal malpractice?

Legal Malpractice

The Criminal Procedure Law §440 motion (once called a writ of corum nobis) seeks to vacate the plea of guilty because there was ineffective assistance of counsel. For the purposes of this article, we equate “ineffective assistance of counsel” with “legal malpractice.” Recovery for legal malpractice requires proof of three elements: (1) the negligence of an attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual, ascertainable damages. It further requires plaintiff to establish that counsel “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that “‘but for’ the attorney’s negligence” the plaintiff would have prevailed in the matter or would have avoided damages. Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 (1st Dept, 2008); Rudolph v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007).

Are the rules of legal malpractice different for criminal defendants from all other litigants? In fact they are very different. It has long been the law and public policy of New York that a criminal defendant may not successfully sue his criminal defense attorney unless innocence or a colorable claim of innocence of the underlying offense can be pled. Carmel v. Lunney, 70 NY2d 169 (1987). The Court of Appeals wrote:

New York has traditionally applied a “but for” approach to causation when evaluating legal malpractice claims, The test is whether a proper defense would have altered the result of a prior action. To be sure, a defendant in a criminal proceeding might be able to prove malpractice by establishing that but for the negligent representation he would, for example, have invoked his Fifth Amendment rights, or succeeded in suppressing certain evidence conclusive of his guilt. But, because he cannot assert his innocence, public policy prevents maintenance of a malpractice action against his attorney. id at 169.…

To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. id.

The Court of Appeals followed up Carmel with Britt v. Legal Aid Society, 95 NY2d 443 (2000). Britt made even more explicit the principle that as public policy, legal malpractice cases against criminal defense attorneys would only take place after acquittal, reversal or exoneration. “The interests of judicial economy militate against a rule where litigious criminal defendants can occupy the time of their incarceration by pursuing civil actions against their former attorneys.” id. The criminal defendant bears “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.” id at 447.

Examples of this public policy and the extraordinary bar to legal malpractice cases against criminal defense attorneys are common. In Yong Wong Park v. Wolf & Samson, P.C., 56 AD3d 351 (1st Dept, 2009), plaintiff was advised to plead guilty to trafficking in counterfeit goods without advising him of the immigration consequences of his guilty plea, and by giving him incorrect advice in general. His legal malpractice, as well as his breach of fiduciary duty claims were dismissed. The court similarly refused to draw a distinction between the direct effects of the claimed malpractice (imprisonment, fines or probation) and the collateral effects of the claimed malpractice (deportation, civil commitment after imprisonment, loss of voting, loss of professional licenses, loss of contracts with municipalities). The subjective reason for pleading guilty was of no moment to the court. Casement v. O’Neill, 28 AD3d 508 (1st Dept. 2006).

The result was no different even when the claimed malpractice took place after the plea. In Rosado v. Legal Aid Socy., 12 AD3d 356 (2d Dept, 2004), the claim was that the Legal Aid Society unnecessarily delayed an appeal which resulted in reversal of the conviction. By then, plaintiff had served three years of his sentence, and after reversal, pled guilty to a reduced charge and received a sentence of a conditional discharge. This conditional discharge allowed for immediate release, and the condition is generally that the defendant not be re-arrested or convicted within the following year. If there is no further criminal involvement, then the case is dismissed. Plaintiff, there, “failed to state a cause of action because he did not successfully challenge his criminal conviction and could neither assert nor establish his innocence.” id at 356.

Numerous defendants have unsuccessfully attempted more circuitous paths. They have raised the severity of sentence and failure to provide a good behavior argument,Biegen v. Rooney, 269 AD2d 264 (1st Dept, 2000); have raised inadequate representation at a bail hearing not connected to a conviction,Malpeso v. Burstein & Pass, 257 AD2d 476 (1st Dept, 2000); argued delays in taking an appeal, Meralla v. Goldenberg, 89 AD3d 645 (1st Dept, 2011); and raised a claim for breach of contract in legal malpractice. Ben-Zvi v. Kronish Lieb Weiner & Hellman, LLP, 278 AD2d 167 (1st Dept, 2000). All were unsuccessful and subject to the same rules and analysis.

A last key principal in legal malpractice cases is that no damages for emotional distress, or non-pecuniary loss are permitted. Put another way, a cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss. Wolkstein v. Morgenstern, 275 AD2d 635 (1st Dept, 2000); Wilson v. City of New York et al., 294 AD2d 290 (1st Dept. 2002). Economic damages alone may be claimed. Brownell v. LeClaire, 96 AD3d 1336 (3d Dept. 2012).


Lacquered over this filagree of principles and delineations is Dombrowski v. Bulson, 19 NY3d 347 (2012). Dombrowski holds that non-pecuniary damages are not available in an action for legal malpractice. Nothing new so far. The Court of Appeals further held in Dombrowski that imprisonment and the prevention of earning a living outside are not elements of damage, either. In other words, one may not argue that they were unable to work while imprisoned, and claim “lost wages” or some other formulation. Even in the face of patent representational errors (determined by a U.S. magistrate judge) and in the face of a dismissal of the criminal charges, no good suit could be brought.

Social Security disability benefits were received by plaintiff during his incarceration. These payments later proved fatal to plaintiff. While the Appellate Division permitted non-pecuniary damages for loss of liberty and other damages that were a direct result of incarceration, the Court of Appeals reversed, holding that:

We see no compelling reason to depart from the established rule limiting recovery in legal malpractice cases to pecuniary damages. Allowing this type of recovery would have, at best, negative and at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling would have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in the post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety.

Is this rationale true? Do trial attorneys have any exposure under Padilla to their wrongfully convicted clients? Technically, yes; practically no. To understand why, we must look at the post-conviction Padilla landscape.

A post-conviction vacatur under Padilla will rarely if ever terminate in an acquittal, or a court-ordered dismissal. The reason for this is the very nature of a CPL §440 motion. It merely seeks vacatur, not dismissal. A request for dismissal is left to later motion practice. Realistically speaking, vacatur under Padilla will be for lack of immigration advice, not on a question of outright innocence, or technical mistake by the government. Most Padilla outcomes will merely be a return to the status post-ante. A client in that status will still be unable to show actual innocence, and still be unable to bring a legal malpractice case.

Even if the case is then dismissed, the quanta of damages will be severely limited, and may well be entirely blocked. As Dombrowski shows, any receipt of any variety of monies, (SSI, for instance) will vitiate the claim of pecuniary loss. If the client was unemployed, it may be very difficult to show any pecuniary loss. If the client received any money in jail (pension, retirement benefits, inmate labor, medical benefits, unemployment insurance) even for a short period of time, there may be no claim at all, because the court views this receipt as pecuniary gain.

Beyond the obvious ethical obligation to help the former client, the take-away from this analysis is that there is little realistic exposure to the attorney in deciding whether to participate in post-conviction efforts to overturn wrongful convictions.

Andrew Lavoott Bluestone is a solo practitioner in Manhattan. He is board certified in legal malpractice by the American Board of Professional Liability Attorneys.