FKB’s A. Michael Furman and Aaron M. Barham obtained a pre-answer dismissal of a legal malpractice lawsuit filed in the Southern District of New York by a former dermatology physician’s assistant who pled guilty to perjury and sexual misconduct offenses against two former patients.  The plaintiff alleged that FKB’s client, a prominent criminal defense attorney, provided incorrect advice about a plea offer that he rejected, and that while represented by successor counsel, the plaintiff was constrained to accept a more severe plea deal that resulted in the surrender of his medical license and other related damages.

In its Rule 12(b)(6) motion to dismiss, FKB successfully argued that the Plaintiff was precluded from asserting a legal malpractice action because he failed to assert a “colorable claim of innocence” to the underlying criminal offenses. Carmel v. Lunney, 70 N.Y.2d 169, 173 (1987).  The Court (Judge Katherine Polk Failla) also agreed with FKB’s proximate causation argument that Plaintiff’s decision to accept the second plea offer (while represented by successor counsel) was an intervening cause of the Plaintiff’s alleged damages. 

If you have any questions about this decision, or the defense of attorneys in general, please contact A. Michael Furman and Aaron M. Barham.