Criminal Malpractice: Privilege of the Innocent Plaintiff

Fordham Law Review Volume 59 | Issue 4 Article 9 1991 Criminal Malpractice: Privilege of the Innocent Plaintiff Susan M. Treyz Recommended Citation Susan M. Treyz, Criminal Malpractice: Privilege of the Innocent Plaintiff, 59 Fordham L. Rev. 719 (1991). Available at: http://ir.lawnet.fordham.edu/flr/vol59/iss4/9 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact . CRIMINAL MALPRACTICE: PRIVILEGE OF THE INNOCENT PLAINTIFF? INTRODUCTION Criminal malpractice, in which an attorney is accused of negligently defending his client in a criminal proceeding,' constitutes a small but increasing percentage2 of legal malpractice suits. Although criminal malpractice is almost identical to civil malpractice, the criminal malpractice plaintiff faces two additional obstacles to his suit.3 First, most jurisdictions' have been hesitant to allow plaintiffs to bring and win criminal malpractice suits without first having successfully shown ineffective assistance of counsel in a separate action.5 Consequently, the criminal malpractice plaintiff essentially is forced to bring an ineffective assistance of counsel claim prior to bringing a malpractice suit.6 Second, a smaller number of jurisdictions7 have recently required plaintiffs to prove actual 1. See Bogutz & Albert, A Survey of the Developing Pennsylvania Law of Attorney Malpractice,61 Temp. L. Rev. 1237, 1273 (1988). 2. See R. Mallen & J.Smith, Legal Malpractice § 21.1, at 284 & n.4 (3d ed. 1989); Bogutz & Albert, supra note 1, at 1273. The increase in criminal malpractice suits is expected to continue. See id. In fact, the present paucity of criminal malpractice suits has been called the "calm before the storm." Id. at 1275. 3. See infra notes 30-66 and accompanying text. 4. See J.Burkoff, Criminal Defense Ethics § 3.3, at 3-16 (1986); infra note 5. 5. See, e.g., Downton v. Vandemark, 571 F. Supp. 40, 43-44 (N.D. Ohio 1983) (plaintiff must prove reversal of conviction plus dismissal on the merits or an acquittal on retrial), explained by Kraln v. Kinney, 43 Ohio St. 3d 103, 106, 538 N.E.2d 1058, 1062 (1989); Bledstein v. Superior Court, 208 Cal. Rptr. 428, 442, 162 Cal. App. 3d 152, 173 (Ct. App. 1984) ("[A] criminal defendant whose conviction has not been reversed, or whose sentence has not been modified after a challenge has been made on competency-ofcounsel grounds, has a seemingly insurmountable obstacle to overcome in trying to show any damage resulted from the alleged malpractice."); Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo. Ct. App. 1986) ("The present action is premature, until such time as appellant is successful in securing post-conviction relief upon a finding that he was denied effiective assistance of counsel."); Weaver v. Carson, 62 Ohio App. 2d 99, 101, 404 N.E.2d 1344, 1346 (Ct. App. 1979) (plaintiffs must show conviction was reversed based on ineffective assistance of counsel), explainedby Krahn v. Kinney, 43 Ohio St. 3d 103, 106, 538 N.E.2d 1058, 1062 (1989); J. Burkoff, supra note 4, § 3.1(c), at 3-10 to 3-11 (plaintiff whose conviction has not been reversed may have "insurmountable obstacle" in showing damages). But see Jepson v. Stubbs, 555 S.W.2d 307, 313 (Mo. 1977) (en banc) (holding that setting aside the conviction was not a condition to maintaining suit). The requirement that the plaintiff must first reverse his conviction, means the plaintiff's guilt precludes his ability to bring a malpractice suit against his attorney. See Weiner v. Mitchell, 114 Cal. App. 3d 39, 48, 170 Cal. Rptr 533, 538 (Ct. App. 1980). In Weiner the court held that the doctrine of collateral estoppel prevented the plaintiff from relitigating the issue of guilt and precluded him from bringing a malpractice suit. See id.; see also Krahn v. Kinney, 43 Ohio St. 3d 103, 106, 538 N.E.2d 1058, 1062 (1989) ("[I]n most cases the failure to secure a reversal of the underlying criminal conviction may bear upon and even destroy the plaintiff's ability to establish the element of proximate cause."). 6. See supra note 5. 7. Specifically, New York and Illinois have imposed a requirement that the criminal malpractice plaintiff show his actual innocence of the underlying crime. See Walker v. Kruse, 484 F.2d 802, 804 (7th Cir. 1973) ("An Illinois court might well hold, as a matter FORDHAM LAW REVIEW [Vol. 59 innocence with respect to the underlying offense even if their conviction was reversed on ineffective assistance of counsel grounds.' In all states, even those not requiring actual innocence, if the plaintiff's attempt to reverse his conviction on the basis of ineffective assistance of counsel was unsuccessful, the attorney-defendant may assert that the plaintiff's malpractice claim is barred by the doctrine of collateral estoppel.9 This Note only addresses cases in which plaintiffs have brought a prior ineffective assistance claim. This Note asserts that the actual innocence standard is unnecessary because collateral estoppel provides sufficient protection against meritless criminal malpractice claims. Part I describes the criminal malpractice claim. Part II examines the attorney's collateral estoppel defense. Part III analyzes the actual innocence requirement and its justifications. This Note concludes that forcing plaintiffs to show actual innocence is unnecessary and that such a requirement leads to unfair and undesirable results. I. BACKGROUND Legal malpractice is a type of professional negligence in which an at- torney fails to meet the standards of a reasonably competent attorney. 10 The client in these actions sues his former lawyer alleging negligence.'1 In the vast majority of legal malpractice suits brought against trial attor- neys, the underlying lawsuit is a civil suit, hence the name "civil malpractice."1 2 In most respects, a criminal malpractice suit is identical to a civil mal- practice suit.13 Both require the establishment of an attorney-client relationship, which gives rise to a duty owed by the attorney to the client. 4 of law, that a criminal conviction cannot support a malpractice claim unless the plaintiff is able to establish his actual innocence."); Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607 (1987) ("plaintiff must allege his innocence or a colorable claim of innocence"); Winkler v. Messinger, Alperin & HufJay, 147 A.D.2d 693, 693, 538 N.Y.S.2d 299, 300 (2d Dep't 1989) (malpractice claim did not set forth viable cause of action because it did not allege plaintiff's innocence of criminal charges); B.K. Industries, Inc. v. Pinks, 143 A.D.2d 963, 965, 533 N.Y.S.2d 595, 596-97 (2d Dep't 1988) (client seeking malpractice damages for negligent misrepresentation in criminal case had burden to prove his innocence); Claudio v. (...truncated)