Francis Asifuah v. REUVEN L. COHEN, ESQ

Background

Francis Assifuah, proceeding without a lawyer, sued Reuven L. Cohen and Williams Cohen LLP. The lawsuit arose from their representation of Assifuah in a federal criminal case. Assifuah had pleaded guilty to conspiracy to commit wire fraud and mail fraud and was later sentenced to 33 months in prison, followed by supervised release. He alleged that the representation was a sham, that the defendants had a conflict of interest, and that they pressured him to accept a plea agreement to avoid trial costs for which his co-defendant, Erdolo Eromo, would be liable.

Assifuah asserted claims for fraud by concealment and suppression, breach of fiduciary duty, legal malpractice, and violations of or conspiracy to violate his constitutional rights. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Choice of Law

The court concluded that there was no material conflict among California, Nevada, and New York law because all three states require dismissal of malpractice claims arising from a criminal proceeding when the plaintiff has not obtained post-conviction relief or asserted innocence. The court also held that New York law would apply because the representation occurred in New York and New York had the greatest interest and connection to the dispute.

State-Law Claims

The court treated the fraud and breach-of-fiduciary-duty claims as duplicative of the malpractice claim because all three claims arose from the same alleged conduct during the defendants’ representation of Assifuah. Under New York law, a legal-malpractice claim based on representation in a criminal proceeding requires the plaintiff to allege innocence or a colorable claim of innocence while the conviction remains undisturbed.

Assifuah did not allege that he was innocent, and the court stated that his conviction remained undisturbed. The court therefore held that none of the malpractice-based claims was actionable and granted the motion to dismiss the claims for fraud by concealment and suppression, breach of fiduciary duty, and malpractice.

Constitutional Claims

The court construed Assifuah’s constitutional allegations as claims under 42 U.S.C. § 1983, a statute that permits damages claims for constitutional violations by persons acting under state authority. The court held that Assifuah did not allege, and could not allege based on the defendants’ status as lay citizens, that Cohen or Williams Cohen LLP acted under color of state law.

The court also rejected the alleged § 1983 conspiracy. Such a claim requires an agreement involving a state actor, but Assifuah alleged conspiracies among the defendants and between the defendants and Eromo, none of whom was a state actor. The court therefore granted the motion to dismiss the constitutional claims.

Leave to Amend and Disposition

The court found that further amendment would be futile. It stated that Assifuah had exhausted his direct appeal and collateral attack on his conviction, so he could not plead a successful malpractice case, and that the defendants’ status as non-state actors would not change for purposes of the constitutional claims.

Judge Analisa Torres granted the defendants’ motion to dismiss and dismissed the case with prejudice. The Clerk of Court was directed to close the case.