A Defense Bar: The "Proof of Innocence" Requirement in Criminal Malpractice Claims

26 Pages Posted: 29 Apr 2013

See all articles by Kevin Bennardo

Kevin Bennardo

University of North Carolina School of Law

Date Written: May 11, 2007


In most states, a civil plaintiff must prove her innocence of criminal wrongdoing in order to recover in a legal malpractice suit against her former criminal defense attorney. The reasoning behind such requirements is faulty and, instead, a criminal defendant-cum-malpractice-plaintiff should not have to prove her innocence to bring such a malpractice claim.

The first part of the article lays out the landscape of the law in this developing area. Although some states require no proof of innocence on the part of the malpractice plaintiff, most states require either prove of post-conviction relief, proof of actual innocence, or both. The article then argues against the justifications offered for the proof of post-conviction relief and proof of actual innocence requirements. These justifications range from efficiency-based concerns to difficulty-of-proof arguments to manifest hostility toward convicted persons. The final part of the article illustrates the affirmative harm visited upon convicted persons by compelling post-conviction relief and concludes that no proof of innocence requirement should be imposed to recover in a civil malpractice action against a criminal defense attorney.

Keywords: legal malpractice, criminal defense, proof of innocence

Suggested Citation

Bennardo, Kevin, A Defense Bar: The "Proof of Innocence" Requirement in Criminal Malpractice Claims (May 11, 2007). 5 Ohio State Journal of Criminal Law 341 (2007). Available at SSRN: https://ssrn.com/abstract=2257604

Kevin Bennardo (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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