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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 110573
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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A local lawyer tells me that I cannot file a malpractice

Customer Question

A local lawyer tells me that I cannot file a malpractice case against my attorney in a Federal White Collar Criminal case,citing Heck v Humphrey, 512 US 477(1994) US Supreme Court. That case appears to apply only to suits against prosecutors.
In Hays v Cave No. 05-2154 7th Cir, May 3, 2006, not only does the case not cite anything that would prohibit such a case but, rules that the case need not be filed in Federal Court but, may be filed in State Court
What say you
Submitted: 3 months ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Well, Hays v. Cave does say that Winniczek v. Nagelberg, 394 F.3d 505, 510 (7th Cir.2005) and Bilal v. Kaplan, 904 F.2d 14 (8th Cir.1990) assume that there is no federal jurisdiction over a state-law malpractice suit merely because its genesis is a federal suit. Also, the Hays court said that with immaterial exceptions, a case filed in state court under state law cannot be removed to federal court on the basis that there are defenses based on federal law.  Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).
So in order for you to invoke jurisdiction in Federal Court, you must prove 1) federal question or 2) diversity of citizenship. So you have to show your malpractice claim "arises under federal law" or there is diversity of citizenship between you and the defendant.