Ethics. Legal Malpractice in Criminal Cases

• Author: David L. Hudson JR.
• Pages: 28-30

Practice Matters | ETHICS

Consider this scenario: A crim-

inal defense lawyer convinc-

es his client to take a plea

bargain that is not a good

deal. The lawyer does not investigate

the crime, hire an expert, visit the scene,

or contact potential alibi witnesses. The

attorney allows the client to waive his

constitutional rights. When the client

realizes the representation is below

acceptable standards and has compro-

mised the case, can the client sue the

lawyer for malpractice?

Certainly, in the civil realm, if a law-

yer performs signi cantly below par—

such as missing a statute of limitations

or failing to advance a clearly cogniza-

ble claim or defense—a client can bring

a claim for professional negligence or

legal malpractice that must meet the

traditional elements: duty, breach of

duty, causation and damages.

But this remedy faces even higher

hurdles in the criminal milieu, and

many advocates feel the bar is too high.

“Given the legal profession’s

pronounced commitment to access to

justice, we should seriously reexamine

the showing that must be made in a

ETHICS

Legal Malpractice

in Criminal Cases

Time to reevaluate the standard?

BY DAVID L. HUDSON JR.

In 1998, in Wiley v. County of San

Diego, the California Supreme Court

explained, “A guilty defendant’s

conviction and sentence are the direct

consequence of his own per dy. … Only

an innocent person wrongly convicted

due to inadequate representation has

suffered a compensable injury.”

Other states use a variant of this

called the exoneration rule, under

which a criminal defendant  rst must

obtain post-conviction relief before

pursuing a legal malpractice claim. To

some, this doesn’t make sense.

“The idea that a client has to prove

actual innocence to sue a lawyer for

malpractice is just plain wrong,” says

Lara Bazelon, a professor at the Uni-

versity of San Francisco School of Law.

“That standard, depending on the state,

can be nearly impossible to meet even

for a client who is innocent.”

In the ABA’s Criminal Justice mag-

azine article “Exonerating Criminal

Defense Attorneys from Civil Malprac-

tice ,” Louisville, Kentucky, attorney J.

Vincent Aprile II writes:

“The primary justi cation ponti -

cates that the defendant’s adjudicated

guilt is the sole proximate cause of the

accused’s conviction and sentence, re-

gardless of the impact of defense coun-

sel’s negligence in the legal proceedings.

This appears to be an ivory tower

perspective divorced from the realities

of the practice of criminal law.”

Aprile, who worked for 30 years as a

public defender, explains that “an actu-

ally innocent accused can be convicted

at the hands of an incompetent defense

attorney” and that “legal guilt has never

been synonymous with actual guilt, or

for that matter, moral guilt.”

Furthermore, it sanctions poor

performance. In other words, a criminal

defense attorney can perform very poor-

criminal malpractice case,” says Susan

Saab Fortney, a professor and director

of the Program for the Advancement of

Legal Ethics at Texas A&M University

School of Law.

The traditional method convicted

people use to seek relief is pursuing

a claim for ineffective assistance of

counsel, which is extraordinarily

hard to win.

Under the U.S. Supreme Court’s

iteration of the standard in Strickland v.

Washington from 1984 , the petitioner

must show that the lawyer performed

de ciently—well below the assumed

reasonable level of competence—and

that the de cient performance caused

actual prejudice.

But the ultimate relief for a client

who prevails on an ineffective assis-

tance of counsel claim is a new hearing

or trial—not monetary relief from the

lawyer, as in a malpractice claim.

Actual innocence

Some jurisdictions create a higher hur-

dle by prohibiting inmates from suing

for legal malpractice unless the client

establishes his or her actual innocence.

“The idea that a client has to prove

actual innocence to sue a lawyer for

malpractice is just plain wrong,”

—Lara Bazelon

Photo courtesy of the University of San Francisco School of Law

Continued on page 30

28

ABA JOURNAL | FEBRUARY–MARCH 2020