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What Constitutes “Exoneration” Sufficient to Sue Criminal Defense Counsel?

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 v. Skelton, No. 18-0386, held that a criminal defendant can sue her lawyer once her conviction is vacated. During the malpractice case, however, she must demonstrate that she was innocent.

Patricia Skelton was an attorney who was convicted of fraud for allegedly altering a will. (She apparently cut and pasted signatures from one version of the will which had been damaged by water to another version printed out of a computer) After her conviction the probate court hearing the estate case found that there was no alteration of the terms of the will. Eventually Ms. Skelton was able to get her criminal conviction vacated. She then sued her criminal defense attorney for legal malpractice. The lower courts dismissed her case, but the Texas Supreme Court reversed and reinstated the case. The opinion discusses prior Texas decisions and then provides a legal definition of “exoneration.”  The discussion is quoted below:

Under the now so-called Peeler [v. Hughes and Luce, 909 S.W. 2d 494 (Texas 1995)\ doctrine, convicts may not sue their criminal-defense attorneys for malpractice unless “they have been exonerated on direct appeal, through post-conviction relief, or otherwise.” Id. at 498. This is so, the Peeler plurality explained, because “allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.” Id. Without this rule, malpractice claims brought by convicted criminals would “drastically diminish[ ] the consequences of the convicts’ criminal conduct and seriously undermine[ ] our system of criminal justice.” Id. And as the plurality also noted, permitting a convicted criminal to recover damages through a legal-malpractice claim would allow that criminal “to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime.” Id. at 497 (quoting State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. Ct. App. 1985)).

While the Peeler plurality predicated its holding on public-policy considerations, policy was not the only driving force behind its reasoning. At its core, the Peeler doctrine rests on the notion of proximate cause. It is the convicted criminal’s illegal conduct, not the attorney’s negligence, that proximately causes the conviction. See id. at 497-98. That is, even if the defense attorney had not been negligent, the conviction would still follow based on the evidence of the underlying crime. So if convicted criminals want to sue their defense attorneys, they must first remove the proximate-cause bar. They can do so, the plurality said, by being “exonerated.” Id. at 498.

Yet the Peeler plurality did not precisely define the term “exonerated” because the disposition of that case did not so require. In this case, however, we must. The question here is whether Skelton has been “exonerated” by having her conviction set aside for ineffective assistance of counsel.

Skelton equates “exoneration” with the act of vacating a conviction, particularly when those grounds do not relate to innocence, such as ineffective assistance of counsel. But such equation is inconsistent with both the plurality’s and dissent’s repeated use of the word “innocence” in Peeler itself. Id. at 497 (using and quoting the word “innocence” at least four times); see also id. at 501 (Phillips, C.J., dissenting) (using the word “innocence” to describe the plurality’s holding at least three times). Indeed, the plurality explicated the underlying policy justifications with “proof of innocence” and an “innocence requirement” in mind. Id. at 497. Having counsel that falls below minimum Sixth Amendment standards, as Skelton did here, suggests nothing about the criminal defendant’s innocence of the underlying crime. It merely says that a conviction cannot stand in the face of a constitutionally deficient trial. See Kimmelman v. Morrison, 477 U.S. 365, 379-80 (1986) (noting that, although criminal-procedure rights in the Constitution “promote the ultimate objective that the guilty be convicted and the innocent go free,” they are “granted to the innocent and the guilty alike”) (quoting Evitts v. Lucey, 469 U.S. 387, 394 (1985)).

Skelton’s view also does not comport with the definition of exoneration: “The clearing of someone’s name after that person has been accused of blameworthy conduct or wrongdoing.” Exoneration, BLACK’S LAW DICTIONARY 721 (11th ed. 2019). Exoneration’s definition contemplates an affirmative act—that is, “the clearing of.” Skelton therefore does not stand “exonerated” by the mere fact that the State has decided to not bring criminal charges against her a second time. Inaction is not affirmative.

Nor do we find persuasive Skelton’s related argument—that she is exonerated because now, without a conviction, she is presumed innocent until proven guilty. The presumption of innocence is a fundamental principle in our criminal-justice system. But the presumption of innocence at trial that the State must overcome is just that: a presumption at trial that the State must overcome. It relates to burdens of proof, not affirmative acts of exoneration. That the State failed to prove a defendant committed a criminal act beyond a reasonable doubt does not mean the defendant did not in fact commit the crime. It merely means the State failed to meet its evidentiary burden. See Ex parte Elizondo, 947 S.W.2d 202, 207 (Tex. Crim. App. 1996) (“The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is innocent but whether the government has met its constitutional burden of proving the defendant’s guilt beyond a reasonable doubt.”) (quoting Herrera v. Collins, 506 U.S. 390, 443 (1993) (Blackmun, J., dissenting)).

All this is not to say that having a conviction vacated is unnecessary to remove the proximate-cause bar. Quite the opposite. The Peeler plurality declared that, as a convicted criminal, Peeler could not maintain a malpractice suit against her defense attorney “unless the conviction has been overturned.” Id. at 498. And shortly preceding that statement, the plurality suggested that a convicted criminal’s “direct appeal” or “post-conviction relief” would be requisite components of the exoneration process. See id. So while having a conviction vacated is not alone sufficient to remove the proximate-cause bar, it is the necessary predicate for a malpractice suit.

Gray, in contrast, argues we should look no further than the basis of Skelton’s post-conviction relief—that is, ineffective assistance of counsel. Because Skelton was not found actually innocent of criminal forgery in her habeas proceeding, Gray contends, Peeler precludes Skelton from pursuing her malpractice claim. Gray would thus expand Peeler‘s reach exponentially, having it categorically bar all claims made by formerly convicted individuals, excepting only those who have been declared “actually innocent” in their habeas proceeding. While we agree with Gray insofar as he argues that Skelton’s conviction must be vacated, we disagree that Skelton must also be declared actually innocent before she may initiate her claim. To be sure, having a conviction vacated on an actual-innocence finding will remove Peeler‘s proximate-cause bar. But an actual-innocence finding in a habeas proceeding is not the only means by which an individual can meet Peeler‘s exoneration requirement.

Which brings us to the next question: What else must an individual, whose conviction has been vacated, affirmatively show to remove Peeler‘s proximate-cause bar? For a traditional legal-malpractice claim, a client must establish that the lawyer owed the client a duty of care, the lawyer breached that duty, and the lawyer’s breach proximately caused the client’s damages. Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017). But for those whose conviction has been vacated on grounds other than actual innocence, we add one more requirement: They must obtain a finding of their innocence as a predicate to the submission of their legal-malpractice claim. Submission of the traditional elements of legal malpractice to the factfinder should thus be conditioned on an affirmative finding that the malpractice plaintiffs are innocent of the crime of which they were formerly convicted. The burden of proof for this predicate finding is the same as in any civil malpractice case: preponderance of the evidence. By requiring this proof, we do not deviate from Peeler‘s proximate-cause rationale because a negative answer to the threshold question negates causation.

In sum, exoneration under Peeler requires not only that the underlying criminal conviction be vacated but also proof of innocence. Innocence, however, can be established in more than one way. It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding. See In re Allen, 366 S.W.3d 696, 700 (Tex. 2012). Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys.

Comment: courts have slowly but surely become more tolerant of legal malpractice claims against criminal defense lawyers. Here, the plaintiff can attempt to prove that she was innocent by introducing evidence that while she technically altered the will she did not change any terms and that her actions were harmless. Whether that is enough for her to win her case is for a jury to decide.

Ed Clinton, Jr.

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