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Illinois Follows The Actual Innocence Rule for Legal Malpractice Cases

Fink v. SHELDON BANK, Ill: Appellate Court, 1st Dist., 3rd Div. 2013 – Google Scholar.

Illinois has long followed the actual innocence rule, which holds that a criminal defendant may not sue his former attorney for legal malpractice unless he can prove that he was actually innocent of the crime.

A plaintiff in a legal malpractice case must prove a case-within-a-case, that is he must prove that, but for the lawyer’s negligence he would have won the underlying case. In the criminal context, the word “won” means “actual innocence.”

Here, the plaintiff was convicted of murder, but his conviction was later overturned on the basis of ineffective assistance of counsel – the idea is that his trial lawyer was so bad that he did not meet the constitutional standards for effective counsel. The appellate court, however, held that the reversal of a conviction on the basis of ineffective assistance of counsel is not sufficient to prove actual innocence. The holding is correct and it is consistent with Illinois law. However, it is somewhat troubling. If the lawyer’s work was really that bad that a murder conviction was overturned and the defendant set free, it seems to me that the client should have some recovery against that lawyer. The client should at least be able to get his money back.

Edward X. Clinton, Jr.

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