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Actual Innocence Rule Bars Divorce Malpractice Claim

A former divorce client who was held in criminal contempt in the divorce case sued his former lawyers for legal malpractice. His claim was dismissed and the Court of Appeals of California, Second District, affirmed the conviction.  The case is Parchin v. Feinberg Mindel Brandt and Klein B295202, dated February 5, 2020. The explanation:

Pavel Parchin appeals from a judgment following an order by the trial court sustaining the demurrer of respondents Feinberg Mindel Brandt & Klein and John Chason (Respondents) without leave to amend. Parchin alleged that Respondents were negligent in representing him in connection with a criminal contempt proceeding in his marital dissolution action. Parchin was convicted of contempt for violating a judgment ordering the payment of spousal support. The trial court sustained the demurrer on the ground that Parchin failed to plead actual innocence and could not allege causation.

We affirm. Parchin was convicted of criminal contempt. An action for legal malpractice in a criminal proceeding requires a plaintiff to plead and prove actual innocence. Parchin’s claimed basis for his innocence—that the judgment underlying his contempt conviction was voided by a subsequent court order—is legally untenable, as confirmed by a prior appellate ruling in the dissolution action.

Thus, Parchin did not, and could not, allege either actual innocence or causation. The trial court therefore properly sustained the demurrer and acted within its discretion in denying leave to amend.

Comment: contempt is a remedy frequently used by divorce lawyers to remedy noncompliance. It usually takes an enormous effort to get yourself held in criminal contempt. Here, because the client was not actually innocent, he has no legal malpractice claim.

Should you have a question about a legal malpractice issue, do not hesitate to contact us. We have analyzed many situations and can often offer insight that other lawyers (who don’t practice in this area) may miss.

Ed Clinton, Jr.

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