FKB’S ANDREW S. KOWLOWITZ AND JASON A. KAYNE SUCCESSFULLY OBTAIN FEDERAL COURT DISMISSAL OF CLAIMS SOUNDING IN CIVIL RIGHTS VIOLATIONS ALLEGED AGAINST CRIMINAL DEFENSE ATTORNEY

04/29/2019

FKB’s Andrew S. Kowlowitz and Jason A. Kayne obtained a pre-answer dismissal from the United States District Court for the Southern District of New York, pursuant to Fed Rule 12-b (6), of claims alleging legal malpractice and constitutional violations in connection with a lawyer/defendant’s representation in an underlying New York State criminal action.

In the underlying action, FKB’s client was appointed by the Court to represent the plaintiff in defense against prostitution-related criminal charges pending in New York County Supreme Court through the New York County Assigned Counsel Defender Plan.

After the underlying action had been pending for approximately one year, the federal government took over the prosecution, and the plaintiff was thereafter prosecuted and convicted in the Southern District of New York on two counts of sex trafficking of a minor and one count of possession of child pornography.

While the federal prosecution was underway, the plaintiff commenced the instant legal malpractice action in federal court against FKB’s client, his defense attorney in the state prosecution, alleging constitutional rights violations and a myriad of other state causes of action.

FKB argued in its motion that plaintiff’s federal conviction precluded him from pleading a “colorable claim of innocence” necessary to sustain a legal malpractice action for representation in an underlying criminal matter. Further, with respect to the alleged civil rights violations, FKB argued that the claims failed as a matter of law, as FKB’s client was neither a “state actor,” nor did the plaintiff sufficiently plead a close nexus between his former attorney’s conduct and the State such that the attorney would be acting under the “color of state law.”

The Court agreed with FKB’s arguments, explicitly dismissing the plaintiff’s complaint on the above grounds. The Court further noted that the plaintiff’s constitutional claims were “neither well pleaded nor tethered to logic and common sense,” and declined to exercise supplemental jurisdiction over the plaintiff’s remaining state law claims.  

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz or Jason A. Kayne.

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