November 10, 2008
Malpractice Claim Against Criminal Defense Counsel Improperly Dismissed
The dismissal of a legal malpractice action brought by a criminal defendant was reversed by the New Hampshire Supreme Court. The court determined that a previous case holding that the defendant must prove actual innocence in order to establish malpractice did not apply under the circumstances:
...we conclude that in this case, where the alleged legal malpractice occurred after the plea and sentencing, where the claim is unrelated to any strategic or tactical decision relating to the plaintiff’s convictions, and where the plaintiff does not argue that but for his attorney’s negligence he would have obtained a different result in the criminal case, the legal malpractice action is not barred by Mahoney. Accordingly, we reverse the trial court’s grant of the defendant’s motion to dismiss, and remand for further proceedings consistent with this opinion.
The defendant had alleged that his lawyer had filed a motion to withdraw his plea without authorization. (Mike Frisch)
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