This is an important issue for legal malpractice attorneys. Is a former criminal defendant required to show actual innocence before he can sue for legal malpractice? Most courts have answered this question with “Yes,” but some states are beginning to deviate from the doctrine. The Iowa Supreme Court held that actual innocence is not required to bring a malpractice suit and but that guilt/innocence determinations are relevant to proof of proximate causation. In other words, you can’t show the lawyer’s actions were the proximate cause of the conviction if you were really guilty.
Regarding actions for malpractice by a criminal defendant, the Restatement concludes that “it is not necessary to prove that the convicted defendant was in fact innocent,” although it notes that “most jurisdictions addressing the issue have stricter rules.” Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392 (Am. Law Inst. 2000) [hereinafter Restatement]. The Restatement adds,
As required by most jurisdictions addressing the issue, a convicted defendant 166*166 seeking damages for malpractice causing a conviction must have had that conviction set aside when process for that relief on the grounds asserted in the malpractice action is available.
Id. Thus, this aspect of the Restatement is consistent with our holding in Trobaugh. See 668 N.W.2d at 583.
We often look to the Restatements for guidance. See Rohlin Constr. Co. v. City of Hinton, 476 N.W.2d 78, 80 (Iowa 1991) (“We often turn to Restatements of the Law. . . .”). We have previously relied on the Restatement of the Law Governing Lawyers when defining the scope of the duty of care attorneys owe their clients.See Sabin v. Ackerman, 846 N.W.2d 835, 842 (Iowa 2014).
We find the approach taken by the Restatement and like-minded jurisdictions to be persuasive. The prerequisite that the malpractice plaintiff obtain judicial relief from her or his conviction, which the Restatement endorses and which we adopted inTrobaugh after “considering all of the issues presented and the wealth of commentary on this issue,” serves as an important screen against unwarranted claims and “preserves key principles of judicial economy and comity.” 668 N.W.2d at 583. But we do not think an additional actual innocence screen is appropriate. Such a prerequisite goes beyond respecting the criminal process—i.e., “judicial economy and comity”—and interposes an additional barrier to recovery that othermalpractice plaintiffs do not have to overcome.
Furthermore, a criminal defendant already “must prove both that the lawyer failed to act properly and that, but for that failure, the result would have been different.” Restatement § 53 cmt. d, at 392; see also Vossoughi, 859 N.W.2d at 649 (noting that to establish a prima facie claim of legal malpractice, the plaintiff must produce evidence showing the attorney’s breach of duty caused actual injury). Often, the innocence or guilt of the client will enter into the causation inquiry that is part of the plaintiff’s prima facie case. See Mashaney, 355 P.3d at 688 (Stegall, J., concurring). For example, if Barker’s counsel had refused to let him plead guilty to the nonexistent crime of soliciting a minor to commit a sex act, would the State have pursued the original charges, assuming it could have done so? What would have been the outcome of those charges? Would Barker have been incarcerated anyway? A criminal defendant who was factually guilty of the crime for which he or she was convicted—or at least guilty of a related crime or a crime with which he or she was originally charged—will likely confront significant causation issues in hislegal malpractice action. We see no reason why such issues cannot be resolved, as they generally are in malpractice actions, by the fact finder.
Thus, we think the causation determination will frequently take into account the guilt or innocence of the client. And ultimately, we are not persuaded by the remaining public policy concerns other than causation. For example, while the notion that an individual should not “profit from participating in an illegal act” is a good general principle, Humphries, 712 S.E.2d at 800, it is too general to describe how our legal system actually operates. We do not bar criminal defendants who are guilty of their crimes from recovering overpayments from their criminal defense counsel, suing for clearly illegal searches, or suing the medical staff in the prison for medical malpractice. By analogy, a criminal defendant who is convicted of a crime due to legal malpractice, and gets that conviction set aside, should not be categorically barred from suing his or her former attorney just because the defendant may have 167*167 been guilty of some lesser charge that would have resulted in a lower sentence.
Comment: This debate is on-going and there are no final answers in the caselaw. You must review your state’s caselaw to determine whether or not actual innocence must be established.