Friday, August 28, 2015

Actual Innocence And Suing Defense Lawyers

A convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence, according to a decision issued today by the Kansas Supreme Court.

This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27  L. Ed. 2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents' Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.

 We affirm the district court judge's decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.

The court held that the agency could not be sued but that, in these circumstances trial and appellate counsel could be

After careful consideration of the competing authorities from other states, we hold that a Kansas criminal defendant is "exonerated" for purposes of accrual of his or her civil legal malpractice claim against counsel on the date that a court grants relief from the conviction on the basis of ineffective assistance of counsel. That relief may come as the result of a K.S.A. 60-1507 motion or some other procedural mechanism in the district court or in one of the appellate courts.


...actual guilt—which if present in these cases will always have occurred prior in time to the alleged legal malpractice—is akin to other legal doctrines of causation and liability such as comparative fault and assumption of risk. All of these doctrines ask


"how plaintiffs might be responsible for their own injuries. Guilt-in-fact has the same focus. In other words, if plaintiffs actually engaged in criminal conduct, then they are partially responsible (and more culpable) for their own resulting injuries (such as incarceration). Under these circumstances, the plaintiff's own conduct precludes his or her recovery, just as with other conventional defenses." Shaw v. State, Dept. of Admin., 861 P.2d 566, 572 n.9 (Alaska 1993).


 Whether Kansas will permit actual guilt to be pled and proved as a true affirmative defense or will simply require the traditional proximate causation element in the criminal defendant's subsequent malpractice case—thereby permitting a legal malpractice defendant to argue to the jury that the criminal defendant's actual guilt is an intervening and superseding cause of his injury—remains to be seen. See, e.g., Shaw, 861 P.2d at 572 ("Rather than require the plaintiff to prove his actual innocence . . . the defendant may raise the issue of the plaintiff's actual guilt as an affirmative defense. The attorney . . . as the party raising the affirmative defense, will thus have the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff."); Desetti v. Chester, 772 S.E.2d 907, 910 (Va. 2015) ("a legal malpractice plaintiff who alleges that malpractice occurred during the course of a criminal matter must plead facts establishing this element of the cause of action: that the damages to be recovered were proximately caused by the attorney's negligence but were not proximately caused by the legal malpractice plaintiff's own criminal actions").

Resolving these questions must wait for another case on another day.

 (Mike Frisch)

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