1-8 Criminal Cases

• Jurisdiction: United States

1-8 Criminal Cases

A criminal defendant-lurned-malpractice plaintiff laces several unique challenges. This is because a legal malpractice proceeding stemming from representation in a criminal matter differs from other types of legal representation.

Orr v. Black & Furci, P.A.³¹⁵ is a good example. Orr holds that "[w]hile proximate causation ordinarily is a factual issue, in certain cases proximate cause may be determined as a matter of law, based on fairness and considerations of public policy."³¹⁶

The issue in Orr was whether Florida state courts would adopt the majority rule that a criminal defendant's guilty plea foreseeably and substantially caused the injury from a conviction. The court held that "when criminal defendants plead guilty to a crime, as malpractice plaintiffs they must prove their innocence in order to maintain a cause of action against their attorney."³¹⁷ Because the plaintiff in Orr pled guilty and did not later prove his innocence, the court ruled that the motion for summary judgment against the client on the professional malpractice claim was correctly granted.³¹⁸

A short time later, in Steele v. Kehoe,³¹⁹ the Florida Supreme Court answered the following certified question in the affirmative: "[W]hen a convicted defendant alleges that his or her attorney agreed to file a postconviction motion on his or her behalf, but failed to do so in a timely manner . . . must a defendant prevail in having his or her conviction or sentence reduced before filing a legal malpractice action?"³²⁰ After reviewing policy arguments from various cases, the Court determined "that a convicted criminal defendant must obtain appellate or postconviction relief as a precondition to maintaining a legal malpractice action."³²¹ However, the statute of limitations for the malpractice action does "not commence until the defendant has obtained final appellate or postconviction relief."³²²

In Schreiber v. Rowe,³²³ the Florida Supreme Court required a plaintiff suing a criminal defense attorney for negligence "to prove by the greater weight of the evidence that he was innocent of the crimes charged in the underlying criminal pro-ceeding."³²⁴ Relying on both Steele and Rowe, the Second District Court of Appeal in Cira v. Dillinger³²⁵ held that a convicted criminal defendant must obtain appellate or post-conviction relief and must prove his or her actual innocence (which it dubbed "the exoneration rule").³²⁶

In Cira, the malpractice plaintiff had obtained post-conviction relief due to ineffective assistance of counsel. He then pled nolo contendere to aggravated battery charges with numerous conditions. An order of probation required 70 days in jail that was satisfied due to time served. He also was required to provide a DNA sample.

The plaintiff then sued his public defender for malpractice but lost at the trial court on summary judgment. On appeal, this decision was upheld, with the court writing, "[W]ithout obtaining relief from the conviction or sentence, the criminal defendant's own actions must be presumed to be the proximate cause of the injury."³²⁷ The court relied on the conditions of the plea to establish that the underlying criminal case was not finally disposed in his favor.³²⁸

In Cocco v. Pritcher,³²⁹ the client sued his lawyer claiming damages due to a criminal charge and a civil restraining order. He was unable to satisfy the exoneration rule because he ultimately pled "no contest" to the battery charge. Thus, the motion to dismiss with prejudice as to that claim was affirmed.³³⁰ However, dismissal of the civil claim was deemed error because the...