In a recent California legal malpractice case, Andrade v. Purviance, No. A161331, California Court of Appeal, 1st Appellate District 2021, the court upheld the dismissal of a legal malpractice case against a criminal defense attorney where the plaintiff could not show that she had been exonerated. In recent years, some scholars have criticized the rule, but it remains the majority rule in the United States. The court explained:
The elements of a legal malpractice action are “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 (Coscia).)
However, to succeed on a claim for legal malpractice arising from a criminal proceeding, a plaintiff also must prove that he or she is actually innocent. (Coscia, supra, 25 Cal.4th at pp. 1199-1200.) “In Coscia, the Supreme Court addressed . . . `whether a former criminal defendant must obtain exoneration by postconviction relief as a prerequisite to obtaining relief for legal malpractice.'” (Wilkinson v. Zelen(2008) 167 Cal.App.4th 37, 46.) The Coscia court concluded, “a plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case—for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief—as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel.” (Coscia, supra, 25 Cal.4th at p. 1205, fn. omitted.) This requirement is grounded in the principles that criminal defendants are provided constitutional and statutory guarantees against ineffective assistance of counsel, and that guilty defendants should not be able to profit from their wrongdoing or shift responsibility for the consequences of their illegal behavior to their criminal defense counsel. (Id.at pp. 1203-1204; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 537-538, 542-543.) Moreover, the actual innocence requirement avoids the risk of inconsistent resolutions in criminal and civil proceedings, serves judicial economy by precluding malpractice actions where a criminal defendant has been denied relief on the basis of ineffective assistance of counsel, and encourages attorneys to represent criminal defendants by reducing meritless malpractice claims. (Coscia, at p. 1204.)
Although Andrade asserts she would have been completely exonerated with competent legal representation, under Coscia, she also must allege she actually obtained exoneration in her underlying criminal case. On this point, Andrade fails. Her complaint is entirely silent on the issue. Andrade’s appellate briefs each contain a heading entitled, “The Underlying Criminal Case is on Appeal and the final outcome is undetermined,” but the briefs contain no argument or record citations to support her position. And, to the contrary, the record indicates both Andrade’s writ petition and appeal were denied.
Andrade next asserts her “factual innocence is proven by Rios v. Cozens, supra[, 9 Cal.3d 454].” But our task is not to assess the merits of the underlying criminal matter. Rather, Coscia requires a showing of “postconviction relief in the form of a final disposition of the underlying criminal case.” (Coscia, supra, 25 Cal.4th at p. 1205.) Andrade has not made such a showing. Accordingly, the trial court properly sustained Purviance’s demurrer to the legal malpractice claim.
Comment: Illinois also follow the actual innocence rule.
Ed Clinton, Jr.