Criminal defense counsel, like any other attorneys, are subject to civil liability for legal malpractice. See generally Ronald E. Mallen, Legal Malpractice (2022 ed.). While legal malpractice cases may be difficult to win because of the requirements of proof of breach of duty, proximate causation, and damages, malpractice claims against criminal defense counsel are especially problematic because many courts have erected substantive and procedural hurdles to such lawsuits.
Some courts require the plaintiff in the malpractice action, the defendant in the underlying criminal matter, to prove exoneration of the underlying offense either through direct appeal or collateral postconviction relief. See, e.g.,Lawrence v. Bingham, Greenebaum, Doll, LLP, 567 S.W.3d 127 (Ky. 2018). Other states add an additional requirement to exoneration: the plaintiff must also establish his or her actual innocence of the underlying charge, also through either direct appeal or postconviction relief. See, e.g., Coscia v. McKenna & Cuneo, 25 P.3d 670, 674 (Cal. 2001). Finally, some courts, while maintaining the requirement that the plaintiff prove actual innocence, allow the plaintiff to do so in the malpractice case rather than in direct appeal or postconviction relief. See, e.g., Lawrence v. Bingham, Greenebaum, Doll, LLP, supra (discussing this approach). Other courts reject these special requirements proof of malpractice by a criminal defendant. See Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989).
There are also procedural barriers to a plaintiff in a malpractice action in the criminal context. For example, some courts require the malpractice plaintiff to file the malpractice claim within the applicable statute of limitations, even if the defendant has not yet obtained postconviction relief. See Cosciav McKenna & Cuneo, 25P.3d 670, 680 (Cal.2001). But see Molen v. Christian, 388 P.3d 591, 596 (Idaho 2017) (the statute of limitations begins to run when the plaintiff is exonerated). The malpractice action should then be stayed pending the outcome of postconviction relief proceedings. Cosciav McKenna & Cuneo, supra at 680.
A recent case from Connecticut recognized some exceptions. In Pringle v. Pattis, 2022 Conn. App. LEXIS 182, the defendant plead guilty to various criminal charges, including attempted murder. The defendant then sued his attorneys who represented him in the criminal case. As plaintiff, the former criminal defendant, alleged among other claims that he had a flat fee agreement with defense counsel, but they demanded additional funds to continue the representation and that one of the defendants without the plaintiff’s consent executed asset forfeiture agreements relating to $17,000 that the state had seized from the plaintiff. Plaintiff also claimed that the defendants pressured him to plead guilty even though he was on emotional distress due to his mother’s death on the eve of his trial. The trial court granted the defendants’ motion to dismiss based on the “exoneration rule”.
On appeal the plaintiff claimed that the trial court improperly dismissed plaintiff’s claims under the exoneration rule. The appellate court first concluded that the Connecticut courts had recognized the exoneration rule, which provides generally that “a legal malpractice claim is not ripe for adjudication unless the plaintiff can demonstrate that the relevant underlying conviction has been invalidated.” 2022 Conn. App. LEXIS 182, at *11. As long as the underlying conviction is valid, a tort claim for malpractice is not justiciable. However, the court went on to hold that the exoneration rule did not apply when the claim being analyzed did not depend on the invalidation of the plaintiff’s criminal conviction.
The court then applied these principles to the claims asserted by the plaintiff, which fell into four categories: (1) improper demand for additional fees, (2) charging and collecting an unreasonable fee because the attempted murder charge never proceeded to trial, (3) legal malpractice, breach of fiduciary duty, and breach of contract by executing the asset forfeiture agreement without the plaintiff’s consent, and (4) legal malpractice, breach of fiduciary duty, and emotional distress based on the defendants’ alleged pressure exerted on the plaintiff to enter a guilty plea.
The court concluded that the exoneration rule did not bar either of the first two claims because the claims for additional fees or unreasonable fees did not depend on the invalidation of the plaintiff’s conviction. The court noted that prior Connecticut cases had held that similar types of claims were not barred by the exoneration rule.
With regard to the third claim of an unconsented asset forfeiture agreement, the court also concluded that the exoneration rule did not bar this claim because invalidation of the plaintiff’s conviction was not an element of this claim. In particular, the plaintiff alleged that defense counsel executed this agreement when the statute of limitations for the state to commence a civil claim for asset forfeiture (90 days) had expired. This narrow claim was collateral to and not depend on the plaintiff’s conviction.
However, the fourth claim was barred by the exoneration rule because the claim was dependent on the plaintiff’s showing that his guilty plea was invalid for one or more reasons, including incapacity resulting from emotional distress. In fact, the plaintiff had already made multiple unsuccessful attempts to invalidate his guilty plea and still had pending a petition for habeas corpus. Allowing the legal malpractice claim to proceed would create the possibility of inconsistent judgments.
For more information, Nathan M. Crystal
