Academic journal article Defense Counsel Journal

Actual Innocence Needed for Criminal Malpractice

Academic journal article Defense Counsel Journal

Actual Innocence Needed for Criminal Malpractice

Article excerpt

LEGAL MALPRACTICE Actual Innocence Needed for Criminal Malpractice

Actual innocence is a necessary element of a cause of action for legal malpractice when a former criminal defendant sues his defense attorney, the California Supreme Court decided in Wiley v. County of San Diego, 966 P.2d 983 (Cal. 1998).

Writing for the majority of the court, Justice Brown conceded that the decision added a fifth element to the classic four elements of a civil legal malpractice action. Those four in California are (lj the duty to use such skill, prudence and diligence as members of the profession commonly possess, (2) a breach of that duty, (3) a proximate causal connection between the breach and the resulting injury, and (4) actual loss or damage. Public policy supported adding the fifth element of actual innocence when the claimant is a criminal defendant, the court declared.

The actual innocence rule is the position of a majority of jurisdictions, the court noted, and public policy considerations are common to those decisions. Those considerations are that a convicted criminals should not be allowed to profit from their crimes and that allowing civil recoveries shifts responsibility for away from the crime and the criminal. "Regardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy," Justice Brown stated. "The fact that non-negligent counsel `could have done better' may warrant post-conviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole. …

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