(dissenting). In my view, Special Term properly denied the motions for summary judgment dismissing the complaint. The majority holds that, so long as plaintiffs conviction based upon his guilty plea has not been vacated in a postconviction proceeding in the underlying criminal action on the basis of ineffective assistance of counsel, it stands as a conclusive bar to plaintiffs action. This follows, according to the majority, because the conviction negates proximate causation, or because it precludes plaintiff from showing that "he would have been successful in the underlying, criminal action if defendants had exercised due care, a necessary element of his malpractice cause of action”.
The basic standard of proof for legal malpractice is that "but for these alleged omissions, [the plaintiff] would have fared better in the underlying action” (Parksville Mobile Modular v Fabricant, 73 AD2d 595, 599, appeal dismissed 49 NY2d 801). Even the general lay public is aware that, through the skill of defense counsel, a person who in fact committed a crime may be acquitted or only be convicted of, or be permitted to plea bargain to, a lesser offense. In that sense, certainly, the exercise of proper legal talents may indeed produce a better result for the client who is actually guilty. This being undisputably so, the inherent premise of the majority’s reasoning has to be that the sine qua non to recovery in criminal defense malpractice is establishment of the plaintiffs innocence of the charges in the underlying criminal action. Clearly, an outstanding conviction based upon a guilty plea can only conclusively negate a later claim of innocence; it does not disprove that, but for defense counsel’s negligence, his client would have "fared better” or, as plaintiff claims here, he never even would have been indicted.
Making actual innocence a prerequisite of recovery in criminal defense malpractice, and, by doing so, also making the unfavorable result of the underlying criminal action (i.e., the conviction) itself a conclusive bar to such recovery, introduces a novel requirement which has no analogy in any other form of actionable legal malpractice. The only New York precedent for this position is the Supreme Court, Special Term, case cited by the majority, Claudio v Heller (119 Misc 2d 432). That case in turn relied upon Vavolizza v Krieger (33 NY2d 351) and Rastelli v Sutter, Moffatt, Yannelli & Zerin (87 AD2d 865, appeal dismissed 57 NY2d 773) as its only New York authorities. However, in both Vavolizza and Rastelli, the plaintiffs had previously unsuccessfully litigated the issue of ineffective *55assistance of counsel, either on direct appeal from the underlying conviction or in a postconviction motion. Thus, the preclusion imposed in both Vavolizza and Rastelli was on the issue of the former attorneys’ negligence, and not on the issue of the plaintiffs’ actual guilt or innocence, the basis of the preclusion applied by the majority here. Indeed, Vavolizza rejected the direct application of collateral estoppel as a bar to malpractice recovery solely on the basis of a guilty plea. In referring to its prior ruling in S. T. Grand, Inc. v City of New York (32 NY2d 300), the court in Vavolizza stated: "We did not hold in that case, nor do we in this one, that a conviction after a plea of guilty can serve as a bar to subsequent civil litigation on the theory that the issues presented in the civil trial were, or could have been, litigated in the criminal proceeding” (Vavolizza v Krieger, supra, p 356; emphasis supplied). Thus, if anything, the quoted dictum in Vavolizza is contrary to the preclusive effect of the guilty plea alone applied by the majority here and by the court in Claudio v Heller (supra).
Making actual innocence a necessary element of this malpractice action is also inconsistent with Cleveland v Cromwell (110 App Div 82). In that case, the court held that the failure of defense counsel to attack the indictment of the plaintiff on technical and other grounds not on the merits spelled out a case of malpractice, without reference to actual guilt or innocence (supra, at pp 86-87). Moreover, to make proof of innocence a condition precedent to recovery in criminal defense malpractice would be inconsistent with the ethical duty of an attorney representing an accused to vigorously seek acquittal by all lawful means, irrespective of the guilt of the client (Matter of Samuel W., 24 NY2d 196, 199, revd on other grounds sub nom. In re Winship, 397 US 358; former Canons of Professional Ethics, Canon 5), and fails accurately to reflect the realities of criminal litigation and the role of defense counsel therein (see, Kaus & Mallen, The Misguiding Hand of Counsel — Reflections on ”Criminal Malpractice”, 21 UCLA L Rev 1191, 1200-1209). All of these considerations weigh heavily against an intermediate appellate court’s creation of a novel and unique impediment to recovery in criminal defense malpractice, as has been accomplished by the majority here.
Additional factors present herein make even less applicable the majority’s holding that, without postconviction relief from the criminal judgment, plaintiff’s entire claim should be barred. First, the alleged malpractice took place not during the formal criminal proceedings against plaintiff, but in the *56earlier Martin Act hearing. That hearing was at an investigatory rather than an accusatory stage of plaintiffs prosecution and, therefore, the full extent of plaintiffs constitutional right to counsel did not apply (People v Sommer, 77 Misc 2d 840, 843; Matter of Kanterman v Attorney-General of State of N. Y, 76 Misc 2d 743, 746). This being the case, any deficiencies in plaintiffs representation at the hearing are not necessarily remediable through a postconviction motion to vacate for ineffective representation, despite the adverse effect of the malpractice on the subsequent criminal proceedings. Second, in addition to charging defendants with incompetent representation, plaintiff has also alleged their breach of a fiduciary duty to him by their undisclosed conflict of interest in simultaneously representing other Fittin, Inc. principals and associates. Such a breach of an attorney’s fiduciary duty may be actionable and give rise to remedies separate and apart from compensatory damages for any alleged harm suffered by plaintiff on the subsequent criminal conviction (see, Restatement [Second] of Torts § 874 comment b [1977]; see also, McCord v Bailey, 636 F2d 606, 618-619 [Wald, J., concurring in part and dissenting in part], cert denied 451 US 983; Fielding v Brebbia, 399 F2d 1003, 1005; cf. Newman v Silver, 553 F Supp 485, mod 713 F2d 14). These outstanding issues raised by the allegations of the complaint are not conclusively disposed of by the majority’s rationale for dismissal, and fully justify Special Term’s ruling that the motion for summary judgment was premature and that plaintiff should have an opportunity for obtaining full disclosure in establishing an evidentiary basis for his claims.
For all of the foregoing reasons, I would affirm Special Term’s order.
Kane and Weiss, JJ., concur with Casey, J.; Mahoney, P. J., concurs in a separate opinion; Levine, J., dissents and votes to affirm in an opinion.
Order reversed, on the law, with one bill of costs, motions granted, and complaint and third-party complaint dismissed.