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 count of legal malpractice that he was overcharged by the lawyer. He claimed that hte lawyer withdrew before trial and that he was overcharged. The Appellate Court held that the actual innocence rule does not bar such claims and reversed the judgment dismissing the complaint.
The Appellate Court followed a 1995 Seventh Circuit decision, Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005) that held that a criminal defendant need not allege or prove actual innocence to argue that he was overcharged.
¶ 41 The present case presents the opportunity Winniczek envisioned, and we take the position that the Seventh Circuit anticipated we would. Plaintiff’s legal-malpractice action is based on two distinct theories that parallel the two counts in Winniczek. Plaintiff alleged that (1) defendant’s representation of plaintiff was deficient and that this led to plaintiff’s conviction and (2) defendant owed plaintiff compensation for withdrawing from the case prematurely, refusing to refund fees paid, and forcing plaintiff to pay for new counsel. Consistent with Winniczek, we hold that the absence of an actual-innocence allegation barred the legal-malpractice claim asserting that defendant’s deficient performance led to plaintiff’s conviction. However, the absence of an actual-innocence allegation did not bar the legal-malpractice claim seeking reimbursement of fees. That claim, unlike the deficient-performance claim, did not blame defendant for plaintiff’s conviction.
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