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New developments on criminal legal malpractice

SCOW addressed the elements of a criminal legal malpractice claim last month in Skindzelewski v. Smith, 2020 WI 57, __ Wis. 2d __, __ N.W.2d__. One element is that the criminal defendant/malpractice plaintiff must prove that he was actually innocent of the charge in his underlying criminal case. Last week, the court of appeals certified a follow up question to SCOW: What if the criminal defendant/malpractice plaintiff was charged with multiple crimes and can show actual innocence as to some, but not all, of the charges against him in the underlying criminal case? See Jama I. Jama v. Jason C. Gonzalez and WILMIC, Appeal No. 2019AP629 (July 9, 2020).

In Skindzelewski, the criminal defendant conceded his guilt to the underlying offense–theft by contractor. He sued his criminal defense lawyer alleging that the lawyer negligently failed to raise a statute of limitations defense that would have precluded his conviction.

SCOW held that the plaintiff in a criminal legal malpractice claim must prove: (1) the existence of an attorney-client relationship; (2) the attorney’s actions were negligent; (3) the attorney’s negligent actions caused the client’s injury; and (4) the client suffered an actual injury. It explained that to prove causation element, the plaintiff must show that “but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action.” Opinion, ¶9.

The court of appeals established the “actual innocence” rule in Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809 and applied it in Tallmadge v. Boyle, 2007 WI App 47, 300 Wis. 2d 510, 730 N.W.2d 173. Skindzelewski asked SCOW to make a narrow exception to the rule for his case where, but for his lawyer’s negligence, he could not have been convicted even though he was guilty.

SCOW declined to establish the exception. It stressed: “The law bars such legal malpractice claims because even if an attorney’s negligence harms a defendant by adversely affecting the outcome of the case, attorney error does not negate a guilty defendant’s culpability. ” Opinion, ¶17.

Now compare Jama’s case. He was charged with multiple crimes. He admitted theft but denied two charges of sexual assault. After a Machner hearing regarding his trial lawyer’s ineffective assistance of counsel, the circuit court vacated all convictions and ordered a new trial. The State ultimately dismissed all charges. Jama pled to theft and to one count of misdemeanor obstruction. But by this point he had served over 2.5 years in prison.

Jama sued his trial lawyer for negligent representation on the sexual assault charges. The court of appeals’ certification calls this a novel, “split innocence” case. That is, the trial lawyer represented Jama on a case where he admitted guilt on one charge but was “actually innocent” of other charges. The court of appeals says that resolution of how the “actual innocence” rule applies to a “split innocence” case requires the application of public policy considerations not addressed in Skindzelewski, Hicks, and Tallmadge. So it asks SCOW to resolve the matter.

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