Criminal Malpractice: A Lawyer’s Holiday

Abstract

This Article examines the difficulties that criminal defendants encounter when suing their former lawyers for malpractice and will provide an analysis of how criminal defense attorneys practice law free from any real threat of civil sanction for their negligent conduct. It first presents four typical criminal malpractice actions and the difficulties each plaintiff encountered, difficulties routinely encountered by criminal malpractice plaintiffs. It then scrutinizes and, where appropriate, criticizes the various impediments placed in the way of criminal malpractice plaintiffs seeking to sue their former attorneys for negligence. These common impediments include a criminal malpractice plaintiff's failure to procure successful post-conviction relief or establish innocence of the charge on which he was convicted, inability to evade the collateral estoppel bar failure to circumvent the expiration of the statute of limitations failure to establish proximate causation, failure to prove a legally cognizable harm, and inability to override a host of competing policy considerations. It concludes by suggesting reforms to remove the needless impediments that serve to frustrate criminal malpractice claimants' quest within the civil system for relief against their former counsel. Suggested reforms include the following: aligning criminal malpractice proximate cause determinations with principles of comparative negligence as opposed to principles of contributory negligence; recognizing actual harm sufficient to support a criminal malpractice claim upon proof of a different, favorable outcome; and adopting a two-track method of permitting criminal malpractice claimants to file their claims contemporaneously with any post-conviction proceedings.

Keywords: criminal malpractice, legal malpractice, post-conviction relief, criminal defense attorneys, negligence, malpractice reforms, legal professionalism