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.
¶ 42 Plaintiff argues that, under Morris, he was not required to prove actual innocence, given his allegation that defendant intentionally breached his fiduciary duty to plaintiff. In Morris, the plaintiff’s defense attorney “intentionally work[ed] to insure [the plaintiff’s] conviction” by helping the State prepare its cross-examination of the plaintiff. Morris, 307 Ill. App. 3d at 1039. The attorney apparently did so to minimize his own potential criminal exposure. Id. at 1038. The appellate court held that, under those circumstances, the plaintiff was not required to prove actual innocence in his legal-malpractice suit against the attorney. Id. at 1039. The court reasoned that the actual-innocence rule “will not be applied to situations where an attorney willfully or intentionally breaches the fiduciary duties he owes to his criminal defense client.” Id. The supreme court reversed the decision in Morris, but on different grounds. See Morris v. Margulis, 197 Ill. 2d 28 (2001).
¶ 43 Morris is readily distinguishable. The only “wilful and intentional” act plaintiff alleged of defendant was his withdrawal from plaintiff’s case. A court-permitted withdrawal from a case is nothing like the sabotage and betrayal present in Morris.We decline to extend Morris to these facts. We conclude that the actual-innocence rule bars plaintiff’s legal-malpractice claim alleging that defendant’s deficient performance led to plaintiff’s criminal conviction.
The court remanded the case for further proceedings, specifically proceeding to determine whether the complaint was timely.
Ed Clinton, Jr.