Legal malpractice in the criminal context: Is postconviction relief required?

• Author: Hoffman, Robert J.
• Position: Florida

One of the emerging areas of legal malpractice claims is the action by the criminal defendant against the attorney that represented that defendant on a criminal case. Oftentimes the criminal defendant files a motion for postconviction relief alleging the ineffective assistance of counsel and seeking a new trial, but that same defendant also files a civil suit against the attorney for damages for that attorney's alleged professional negligence. This article will attempt to explain how the courts in Florida and other states have treated this issue and, specifically, the pleading barrier that has been added to make these suits especially difficult to maintain.

An action for legal malpractice in Florida generally requires "(1) the employment of the attorney; (2) the attorney's neglect of a reasonable duty; and (3) that the attorney's negligence was the proximate cause of the loss to the client." Rowe v. Schreiber, 725 So. 2d at 1249 (Fla. 4th DCA 1999). Courts have consistently been presented with motions to dismiss based on the defense that the statute of limitations, which is two years in Florida for legal malpractice,(1) bars the suit. The Fourth District Court of Appeal has held that a precondition to a legal malpractice action is the setting aside of the criminal defendant's conviction on appeal or in a postconviction proceeding. See Rowe, 725 So. 2d at 1249. The court in Rowe was persuaded by decisions from Alaska,(2) Nevada,(3) New York,(4) Oregon,(5) and Texas.(6) The court in Rowe chose to join the majority of states in imposing this additional element for claims based on alleged malpractice in the context of a criminal case. Indeed, even prior to the decision in Rowe, the U.S. District Court for the Middle District of Florida, Orlando Division, held that in applying Florida law, 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. See Orr v. Black & Furci, P.A., 876 F. Supp. 1270 (M.D. Fla. 1995). In essence, the court found that the proximate cause of the defendant's damages was the defendant's guilt and his guilt alone. See Orr, 876 F. Supp. at 1267, citing Weiner v. Mitchell, Silberberg & Knupp, 114 Cal. App. 39, 170 Cal. Rptr. 533, 538 (1980). The court in Rowe acknowledged that several states have taken a different view and have decided that, as a prerequisite for maintenance of a cause of action, the malpractice plaintiff must pursue a civil suit and postconviction proceeding simultaneously. See Rowe, 725 So. 2d at 298; see also Silvers v. Brodeur, 682 N.E.2d 811 (Ind. Ct. App. 1997) (adopting discovery rule to bar claims filed more than two years after discovery of malpractice).

One of the key policy reasons Florida courts have cited in barring a defendant from bringing a malpractice claim is that it would be illogical and unreasonable to allow the criminal defendant the opportunity to collect from his counsel damages in a civil suit for ineffective representation when that defendant has failed in attacking his conviction on grounds of ineffective assistance of counsel. See Zeidwig v. Ward, 548 So. 2d 209 (Fla. 1989). Rowe also recognized conflict with an earlier decision of the First District Court of Appeal which did not require the finding of postconviction relief for ineffective assistance of counsel. See Martin v. Pafford, 583 So. 2d 736, 738 (Fla. 1st DCA 1991). The Fifth District Court of Appeal followed its own decision in Steele v. Kehoe, 724 So. 2d 1192 (Fla. 5th DCA 1998), when it affirmed a Summary judgment against a malpractice plaintiff because he had failed to obtain exoneration in the criminal...