4.04. Malpractice Standard for Criminal Defendants

When a criminal defendant sues his defense lawyer for malpractice, he is asserting a civil suit for money damages.  This claim has no impact on the underlying criminal proceeding. There are ways to challenge the criminal conviction itself for the incompetence of defense counsel – by asserting an ineffective assistance of counsel claim in a habeas corpus proceeding (which we will discuss in the topic dealing with competence) – but here we are only talking about a criminal defendant seeking to recover money damages for an attorney’s negligent representation.

Because this is a malpractice claim just like those discussed above, the plaintiff must establish the existence of an attorney-client relationship, duty, breach, causation, and damage.  However, most courts add an additional element: the person must show that they were actually innocent of the charged offense.  This may seem harsh.  It means that in a criminal trial, a defendant can have the most incompetent attorney in the world that admits breaching the duty owed to the defendant in the criminal matter, and when the criminal defendant turns around and sues the attorney in malpractice, his suit will be dismissed unless he can demonstrate that he is actually innocent of the crime.  Actual innocence here means that he must be able to establish by a preponderance of the evidence that he did not commit the crime charged.  Even if he subsequently is exonerated based on a legal argument (for example, because crucial evidence should have not have been admitted at trial), that is considered legal innocence and not actual innocence.

It should be clear that requiring proof of actual innocence makes malpractice actions related to criminal proceedings rare.  There are five primary policy justifications given for this heightened bar to recover: (1)  allowing a criminal defendant to recover without proving actual innocence would allow the defendant to profit (make money) off of his own criminal activity; (2) allowing money damages without proof of actual innocence would shift responsibility of the crime from the defendant to the lawyer; (3)  defendants who receive inadequate representation in the criminal action have adequate avenues of relief in post-conviction proceedings; (4) the judicial system itself has an interest in ensuring that there are not conflicting outcomes – guilty in the criminal proceeding and then allowing recovery from the defense lawyer for malpractice calls into question the underlying criminal proceeding; and (5) criminal defendants have a number of protections for their constitutional rights throughout the criminal process – including the court.[1]   Not every court requires the criminal defendant to prove that he was actually innocent of the crime to bring a malpractice action.  In those jurisdictions, the defendant must prove that he was ultimately exonerated, but not that he was actually innocent.  The justifications given for this position are:  (1)  requiring actual innocence would mean that an attorney who knows that their client is guilty would never face a malpractice claim (because their client could never prove actual innocence); (2) the harm caused by negligent representation is separate from the harm caused by a conviction and should be viewed as a separate cause of action; and (3) the criminal defendant must still establish the causation element of the malpractice claim – that but for the attorney’s negligence the outcome of the criminal case would have been different – which will address many of the concerns raised by the courts that require actual innocence.[2]

[1] These are set out in Wiley v. San Diego, 966 P.2d 983 (Cal. 1988).

[2] See Molen v. Christiansan, 388 P.3d 591 (Idaho 2017); Barker v. Capotoso, 875 N.W.2d 157 (Iowa 2016)(addressing each of the justifications set out in Wiley.  The Restatement (Third) of Law Governing Lawyers § 53 also takes this approach).