Attorneys whose sole area of practice is criminal law frequently do not carry professional liability insurance. This stems from their mistaken belief that criminal practice does not have any potential for professional liability. However, all criminal attorneys should be aware that, in fact, there does exist the potential for liability based in negligence theory.

                  Even in a criminal proceeding an attorney has a duty to exercise the same level of skill, prudence, and diligence commonly possessed and exercised by attorneys. A plaintiff has a claim for malpractice against a criminal attorney if they can prove: 1) breach of that duty; 2) a proximate causal connection between the breach and resulting injury; 3) actual loss or damage resulting from the attorney’s negligence; and 4) actual innocence of the former criminal defendant. (Ovando v. County of Los Angeles (2008) 159 Cal. App. 4th 42; Rose v. Hudson (2007) 153 Cal. App. 4th 641.)

As a prerequisite to such a malpractice claim, the criminal defendant must obtain relief from judgment of conviction and prove actual innocence by a preponderance of the evidence in a subsequent civil malpractice action. (Coscia v. McKenna & Cuneo (2001) 25 Cal. 4th 1194.) Liability may only be found under this theory if the convicted client first obtains reversal of the conviction or other exoneration by postconviction relief. If this is obtained, the client must then establish his or her actual innocence. This rule applies to convictions based upon guilty or no-contest pleas before either a judge or jury, as well as to all claims whether they arise from wrongful conviction, exceedingly long sentences, or attorney’s fees.

In order to establish his or her actual innocence, the plaintiff must prove factual innocence and exoneration as to all transactionally related offenses comprising a basis for the underlying proceeding. (Wilkinson v. Zelen (2008) 167 Cal. App. 4th 37.) Illustrative of this point is the case of Sangha v. La Barbera (2006) 146 Cal. App. 4th 79, wherein a criminal defendant was advised by his attorney to plead guilty to a felony charge of vandalism. In order to establish his actual innocence, the plaintiff not only had to prove actual innocence of the felony vandalism charge, but the lesser-included offence of misdemeanor vandalism as well.

Such malpractice claims arising from an attorney’s negligent representation are separate and apart from claims alleging breach of contract or fiduciary duties.  A fee dispute between a client and attorney does not entail the same policy considerations that arise from a malpractice suit and will not invoke the actual innocence rule. Likewise, there are important public policy reasons for not applying the actual innocence rule to cases involving such fee disputes. The duty to charge a fair, reasonable and conscionable fee applies to all attorneys. If only innocent clients could seek redress for such a breach, this would implicate that guilty defendants could not.

If a plaintiff is able to prove his or her actual innocence, he or she must then prove by a preponderance of the evidence that but for the negligence of his attorney, the judge or jury could not have found him guilty of the crime charged.

While it might appear that, for a plaintiff, obtaining postconviction relief and proving actual innocence is a large obstacle to overcome, it is important for all criminal defense attorneys to understand that there always exists the possibility for legal malpractice. Furthermore, this again illustrates the importance of professional liability insurance for all attorneys.

Jampol Zimet LLP

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  1. risk manager says:

    I am wondering where you got your statistics around the number of criminal attorneys who do not carry legal malpractice insurance. This is information that we have tried to ascertain but have not found any good data. Please share! Thanks.

  2. DKK says:

    Marc, I have seen this first hand. I represented a criminal defense lawyer who was sued for malpractice because he was unable to convince the district attorney that the DA was holding the wrong man. The criminal (the “Iceman”) and the man being held (LW) had the same name, were the same height and had the same facial features. My client was unable to get him out of prison for 9 months. When he finally was able to dig up evidence showing that LW was not the man who committed the crime, the DA released him. LW then sued my client. We got the case dismissed, but it showed that a criminal attorney is not immune from a malpractice suit.

  3. Marc Zimet says:

    Excellent example DKK. As for your inquiry Risk Manager, I don’t know the statistics you are referencing; I don’t think I used any (other than to say that “[a]ttorneys whose sole area of practice is criminal law frequently do not carry professional liability insurance.” That tidbit I got from my insurance broker clients and friends whose sole practice is criminal defense work.

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