Thursday, July 7, 2016
Actual Innocence Required To Sue Defense Counsel For Malpractice; Sitting In Jail Extra 13 Months Not Enough
The Washington State Supreme Court has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.
We find that the public policy concerns recognized in Ang require a plaintiff to prove actual innocence of an alleged crime when pursuing a criminal malpractice claim. Because any term of confinement Piris served was within the broad authority of the trial court, the argument for a Powell exception is inapplicable here. We need not overrule Powell but note it involved a unique and narrow set of circumstances where defense counsel and the court were evidently unaware of the class or level of crime to which Powell was pleading guilty. We expect defense counsel to know the level of crime for which a client is being sentenced. That circumstance in Powell is not present in Piris's case before us.
Justice Stephens dissented
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...
Undoubtedly, Piris's criminal conduct was the "natural cause" of his 146- month sentence. But the additional 13 months he served on top of his lawful sentence was proximately caused by his attorneys' alleged negligence in not ensuring that he was timely resentenced. Piris should not have to prove his actual innocence as a precondition to seeking damages for these 13 months. From a practical standpoint, he is in the same position as the plaintiff in Powell; regardless of whether his excess sentence exceeded a statutory maximum or the confinement term the court imposed, it was unlawful. He should be entitled to proceed with his claim and attempt to prove that his harm resulted from his attorneys' negligence.
I would hold that a criminal malpractice plaintiff whose sentence is vacated and remanded but who does not timely receive the benefit of resentencing due to alleged attorney negligence need not prove he is actually innocent of the underlying criminal conduct to proceed with his criminal malpractice claim. Because the majority extends the actual innocence rule beyond its justifications in policy or causation principles, I respectfully dissent.
Note correction to our error in identifying the court. (Mike Frisch)