Ethics Watch

• Publication year: 2022
• Pages: 16

ETHICS WATCH Vol. 34 Issue 1 Pg. 16 South Carolina Bar Journal July, 2022

Malpractice Liability of Criminal Defense Counsel -The Shields are Weakened

By Nathan M. Crystal

Criminal defense counsel, like attorneys in civil cases or transactional matters, are subject to civil liability for legal malpractice. See generally Ronald E. Mallen, Legal Malpractice, Chapter 27 (2022 ed.). While legal malpractice claims against civil litigators and transactional lawyers may be difficult to establish 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 133 (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 for 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, 25 P.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.

Some examples will show the effect of these special requirements...