The parties have stipulated that New Hampshire law applies 1

in this case. See Joint Discovery Plan (document no. 17). 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sherrill L. White

v. Civil No. 08-cv-206-JL

Mark L. Sisti, Esq.

 O R D E R

The defendant has filed a motion for judgment on the

pleadings in this legal malpractice case. See Fed. R. Civ. P.

12(c). He argues that the claim against him is barred as a

matter of law because the plaintiff, Sherrill White, has not

pleaded that the criminal conviction forming the basis for this

claim has not been overturned or vacated (and because, as a

matter of objective fact, it has not). For the following

reasons, the defendant’s motion is granted. 

Under New Hampshire law, “a civil malpractice action 1

requires proof of (1) an attorney-client relationship, which

triggers a duty on the attorney to exercise reasonable

professional care, skill, and knowledge in providing legal

services to that client, (2) a breach of that duty, and (3)

resultant harm legally caused by the breach.” Mahoney v.

Case 1:08-cv-00206-JL Document 28 Filed 06/23/09 Page 1 of 3
(Document no. 21). 2

2

Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 495-96

(1999). “Public policy, however, dictates an augmented standard

in criminal malpractice actions.” Id. at 496. “As a matter of

law, the gateway to damages will remain closed unless a claimant

can establish that he or she is, in fact, innocent of the conduct

underlying the criminal charge.” Id. Thus, “post-conviction

relief is also required as an element of criminal legal

malpractice.” Therrien v. Sullivan, 153 N.H. 211, 214 (2006)

(emphasis added). 

Here, White cannot maintain her claim against the defendant

because she has failed to establish the fourth element of her

prima facie case; there is no evidence that she obtained, or even

sought, post-conviction relief. “[A]s long as a valid criminal

conviction is in place, a legal malpractice cause of action based

on a defense counsel’s ineffective assistance resulting in that

conviction cannot withstand a motion to dismiss.” Id. at 216. 

The court, therefore, grants the defendant’s motion. All other 2

Case 1:08-cv-00206-JL Document 28 Filed 06/23/09 Page 2 of 3
 The plaintiff has filed a “motion for dismissal without 3

prejudice” (document no. 27), premised on the suggestion that the

court, on June 9, 2009, granted her 10 days to decide whether she

wished to dismiss the case “with or without prejudice.” This, in

fact, misconstrues the court’s statement. What the court

informed the parties on June 9 was that it intended to rule on

the defendant’s motion for judgment on the pleadings on June 19

if the parties had not notified the court by that date that the

case had been settled. The court’s reference to a dismissal

“with or without prejudice” was simply one of many factors the

court listed as open for discussion between the parties. As the

case has not been settled, the court has ruled on the motion for

judgment on the pleadings.

3

motions are DENIED AS MOOT. The clerk is ordered to enter 3

judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: June 23, 2009

cc: Sherrill L. White, pro se

Christopher D. Hawkins, Esq. 

Case 1:08-cv-00206-JL Document 28 Filed 06/23/09 Page 3 of 3