Rojo v. Tunick, 2021 Il App (2d) 200191, is a legal malpractice case filed by a criminal defendant against his former lawyer. Usually these cases are quickly resolved because the plaintiff cannot plead actual innocence. Since Rojo was convicted he could not plead actual innocence. However, Rojo alleged a second…
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…
On June 30, 2020, the Missouri Supreme Court decided Laughlin v. Perry and Flotman, No. SC98012. The court held that the defendants, two public defenders, were immune from suit because public defenders are state employees performing discretionary acts. In Laughlin’s case, the two public defenders missed a jurisdictional problem with…
This is another very important and recurring issue in the legal malpractice field. Most states have a rule that provides that a criminal defendant cannot sue his former attorney unless he establishes that he is actually innocent. Texas prefers the term “exoneration.” This year the Texas Supreme Court, in Gray…
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…
The case is captioned Patterson v. Kohn, 2017 AP 1524, decided by the Wisconsin Court of Appeals. Patterson sued his former criminal defense lawyer for failing to properly investigate his defense (self-defense to a reckless homicide charge), and interview witnesses. Patterson was unable to obtain an expert witness to support…
One issue that arises frequently is whether or not a criminal defendant must obtain a finding of actual innocence before he can sue trial counsel for legal malpractice. The Kentucky Supreme Court adopted the Exoneration Rule on December 13, 2018, in the case of Lawrence v. Bingham. The Rule has…
This is an issue that has become controversial. In most states, a criminal defendant who was convicted cannot sue for legal malpractice unless he establishes “actual innocence” or in New York, a colorable claim of innocence. Roy v. The Law Offices of B. Alan Seidler, P.C., (17 Civ. 5644 S.D.…
Another State Supreme Court, here Idaho, has abandoned the actual innocence rule. That rule holds that a criminal defendant cannot sue his lawyer for legal malpractice unless he establishes actual innocence. The court explained: This Court has addressed a legal malpractice claim arising from a criminal case only once, in…
I have written several times over the past year about the actual innocence rule, which requires a criminal defendant to prove actual innocence before he can sue his criminal defense lawyer for legal malpractice. Several courts have abandoned the rule in recent years. Washington, however, has decided in the case…