Law Offices of John P. Martin

When a lawyer has committed legal malpractice in the course of representing a client in criminal matter, it is sometimes called “criminal malpractice.”

Legal malpractice like any professional malpractice, is a tort, where a victim can file a civil lawsuit to recover damages resulting from the malpractice. Just as one can sue their accountant, or doctor, when they commit malpractice, clients who suffer malpractice from their lawyers can sue to recover damages as well.

In Washington, to prevail in a “non-criminal” legal malpractice claim the victim, or plaintiff, must prove the following elements:

1. The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client;
2. an act or omission by the attorney in breach of the duty of care;
3. damage to the client; and
4. proximate causation between the attorney’s breach of the duty and the damage incurred.

Ang v. Martin, 154 Wn.2d 477, 114 P.3d 637 (2005).

The plaintiff is required to prove the above elements by a preponderance of the evidence. (Less stringent than proving beyond a reasonable doubt.) Granted, the elements are legalese, but for the most part they mean what they say.

Unfortunately for victims of criminal malpractice, courts have added two additional elements that must be proved. To be precise, they are sub-elements of the proximate cause element in criminal malpractice cases. They are as follows:

1. Plaintiff must have obtained post-conviction relief of the underlying criminal conviction; and
2. the plaintiff must prove ACTUAL innocence of the crime that resulted in the underlying criminal court action.

Therefore, in order to avoid a dismissal of a malpractice claim, a victim of legal malpractice that occurred during a criminal proceeding, must convince a court, or appeals court, to overturn, or reject, the criminal charges/conviction against him or her. This can be difficult because often a court will recognize that malpractice occurred, but then it will determine that the malpractice was “harmless error” meaning that the jury could have convicted the defendant even if the error did not occur.

However, it is the second requirement, proving actual innocence, that is the must difficult. Even if an appeals court overturns the conviction because of legal malpractice, the law in Washington only presumes that the plaintiff/defendant has established legal innocence, and not actual innocence. This means that the plaintiff in a criminal malpractice suit must re-argue the criminal case and prove to the judge, or jury that he or she was completely innocent.

Requiring this high standard to prove criminal malpractice is wrong. Lawyers can do terrible harm to criminal defendants by committing malpractice, even though the defendant has committed the crime. An example is when a defense attorney lies to his or her client about the consequences of accepting a plea agreement. Or, the defense attorney recommends a plea agreement, when further investigation would show that the government can not prove their case. You can imagine many more examples.

Malpractice in criminal cases can cause the most harm - loss of liberty, lifelong stigma of criminal conviction, loss of right to employment in certain careers, and large fines and penalties. Such malpractice, when it occurs, will often fall upon the most vulnerable persons in our society, those who need good legal representation more than anyone.

The dissenting justices in Ang v. Martin say it best:

I dissent because the malpractice standard for criminal cases should be the same as civil. There is no reason to invite malpractice in criminal cases by heightening the plaintiff’s burden to prove postconviction relief and actual innocence. In every situation a client should rightfully expect competent legal representation. Justice Sanders

I concur in Justice Sanders’ dissent but write separately to express my indignation that this court, based upon the policy of protecting lawyers, would carve out a special protection for criminal defense attorneys whose acts of professional negligence are harmful to their clients. Under this logic, it is not enough for the injured client to prove actual harm from the attorney’s failure to meet professional standards; the injured client must also prove that her hands were always clean. Under this logic, why not give immunity to accountants for professional negligence unless the accountant’s client can prove he or she never understated income or requested an unavailable deduction, even when the accountants’ bad acts
caused actual harm to their clients or society? Surely tax dodgers should not profit from their misdeeds. Under this logic, why not give immunity to health care providers who harm their patients unless the patient can prove perfect good health but for the negligence of the provider? Surely the unhealthy should not profit from their illness. Justice Chambers.

Today, few of us would even consider trying to tune-up or repair our cars without professional assistance. Sure some of us might change the oil, or rotate the tires, but for anything beyond that we go to a professional auto technician. No one likes to deal with a broken down car but because our vehicles are important to us we rarely hesitate to take them into the shop for repairs and maintenance. Also, we all know that putting off car repairs and maintenance will lead to bigger headaches and more expense down the line. I wish people would handle their legal problems the same way.

Legal problems are part of modern day life just like car problems. Likewise, they should be handled the same way, with professional mechanics who have the specialized knowledge required to solve the problems. And, just like car problems, putting off small legal problems almost always snowballs into big expensive legal problems.

I am amazed at some of the deals people get themselves into without consulting a lawyer before signing on the dotted line. It is not very expensive to have a lawyer review a contract or other agreement before getting locked into it, so why not do it? Few people I know, would buy a used car before having it checked out by an auto mechanic. But, all the time, folks get into oddball real estate or business arrangements that are much bigger deals, in terms of value and liability, than any used car - without taking the time and effort to have a lawyer review the deal. By the time an oddball deal has gone sour it is always difficult and expensive to sort things out.

Other legal issues, such as, when someone is trying to screw you over, or when you have screwed up, should also be addressed by quickly obtaining legal counsel. Many problems will simply go away as soon as lawyer makes an inquiring phone call. If the call doesn’t bring satisfaction letters will often work. It is only in the very worst of cases that lawsuits will need to be filed. But the main point to realize is that when you think you are treated wrongly by a landlord, tenant, or business, what they are doing is likely against the law. And if, what they are doing is against the law, they will almost always back off when faced with the threat of legal action.

In addition, for many consumer and landlord tenant issues, the law specifically authorizes double or treble damages, and/or attorney’s fees. So even if the amount of money involved in your issue is small it may still be worth it to consult a lawyer.