FKB's Andrew S. Kowlowitz obtains dismissal of a legal malpractice action against a high profile criminal defense attorney. The decision was featured in the New York Law Journal. 5/16/11

FKB's client is a high profile criminal defense attorney (hereinafter "Defense Attorney"). This matter arose from the underlying criminal prosecution of the former head of a large corporate conglomerate (hereinafter "Criminal Defendant"). The Criminal Defendant retained the Defense Attorney to represent him in connection with the U.S. Department of Justice's investigation into allegations that the Criminal Defendant defrauded investors and creditors out of $183 million. As the investigation proceeded, it became apparent that the evidence of the Criminal Defendant's guilt was overwhelming. The Defense Attorney counseled his client to accept a plea offer in exchange for a reduced sentence. When the client refused, the Defense Attorney withdrew as counsel. The Criminal Defendant then retained successor trial counsel (the Defense Attorney did not assist at trial) and the criminal case proceeded to trial. A jury ultimately convicted the Criminal Defendant on various counts of fraud. The Criminal Defendant then retained the Defense Attorney again to represent him in connection with the sentencing hearing. The Defense Attorney obtained a favorable result for the Criminal Defendant, who was sentenced to a term of 15 years in prison, a term significantly less than the term sought by the prosecution -25-30 years.

The Criminal Defendant then brought an action in the Southern District of New York, U.S. District Court against the Defense Attorney alleging malpractice, deceptive billing practices, misrepresentation/fraud and civil rights violations. Among other things, the Criminal Defendant alleged his attorney failed to convey the Government's plea offers, and failed to convey certain critical facts in the criminal investigation. The Complaint also alleged that the Defense Attorney overbilled for his services.

FKB filed a pre-answer motion to dismiss pursuant to Federal Rules 12 (b). The Complaint was later amended twice. On June 18, 2010, Magistrate Judge Francis issued a Report & Recommendation, recommending that the District Court Judge, Honorable Paul A. Crotty, grant the Defense Attorney's motion to dismiss. In summary, Magistrate Judge Francis found the Criminal Defendant's claims to be frivolous, ineptly pled and completely unsustainable. Magistrate Judge Francis also found that the allegations and claims were belied by documentary evidence. The Report & Recommendation also recommended that the Court deny the Criminal Defendant another opportunity to replead his claims. On May 11, 2011, the Honorable Paul A. Crotty issued an Order adopting the Report & Recommendation in its entirety and dismissing the Complaint. Judge Crotty's decision was featured in the New York Law Journal on May 16, 2011.

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

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