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Ineffective Assistance Of Counsel Does Not Equal Legal Malpractice

This case, Desetti v. Chester, (Virginia Supreme Court), June 4, 2015, holds that a criminal defendant cannot bring a legal malpractice claim against her former lawyer because she was not factually innocent of the charge.

Few legal malpractice cases succeed in the criminal context because the plaintiff (formerly the criminal defendant) must prove all the elements of a legal malpractice case and that he was factually innocent of the charged crime. The reason for this rule is to prevent the criminal from profiting from his crime. Very few criminal defendants can accomplish the task of demonstrating factual innocence.

In this case, Judy Gayle Desetti was convicted of felony assault arising out of an altercation between Judy, her son and a police officer. After she was convicted, Judy proved that her criminal defense counsel was ineffective because he failed to convey a plea bargain offer that would have reduced the charges to a misdemeanor. The attorney also allegedly failed to respond to the plea offer. He also failed to inform Desetti that a finding of guilty would entail a mandatory jail sentence of six months. Based on these shortcomings with her legal representation, Desetti received habeas corpus relief and her conviction was vacated.

Unfortunately, she then pled guilty to misdemeanor assault. This meant that she was not factually innocent of the crime and that she had no legal malpractice case. Thus, the court reasoned that she had no legal malpractice case because she could not prove that but for the lawyer’s mistake she would have won the underlying case.

Edward X. Clinton, Jr.

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