By Will Jordan

A couple of weeks ago, inspired by the developing story of Adnan Syed, we wrote about the interplay between a criminal defendant’s request for post-conviction relief on the basis of ineffective assistance of counsel and his claim for legal malpractice against his defense attorney. In that post, we wrote that “[i]n order to assert a claim for legal malpractice arising in a criminal case, the plaintiff must first seek and obtain post-conviction relief.” That is because the legal malpractice plaintiff must establish his “actual innocence.” A June 3rd case out of New York reminds us, however, that even if the legal malpractice plaintiff obtains post-conviction relief on the basis of ineffective assistance of counsel, he or she still may not have a legal malpractice claim. In Dawson v. Schoenberg, the plaintiff was convicted of sexual abuse. On appeal, the court reversed the conviction on the basis that the plaintiff was deprived of the effective assistance of counsel. At a new trial, with new counsel, plaintiff was acquitted of the sexual abuse charges. She then sued her original trial counsel for legal malpractice. Even though she had succeeded on her claim of ineffective assistance of counsel and had been acquitted of the charges at the second trial, the court affirmed the dismissal of the legal malpractice claim, finding that “plaintiff’s convictions after her first trial were not due solely to the defendant’s conduct, but were also the result of other factors, including those arising from some consequence of her guilt.” The court noted the “graphic testimony of plaintiff’s own children, admitted into evidence in the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them.” Thus, the evidence, even though insufficient to result in criminal conviction, was, in the court’s eye, sufficient to destroy the proximate causation element of plaintiff’s legal malpractice claim.