A Profession for the New Millennium: Restoring Public Trust and Confidence in our System of Justice

Some criminal defendants are suing their old lawyers for not doing a good job. This is an emerging problem in the legal world. It’s hard for them to win these cases because of a special rule that makes it difficult to sue a lawyer for bad work. This article will explain how Florida and other states are dealing with this issue. Simply put, in Florida, if you believe your lawyer did a bad job in a criminal case, you have to get your conviction overturned before you can sue them for malpractice. This is different from some other states where you can sue while still working on getting your conviction overturned. And you have to sue within two years of finding out about the lawyer’s mistake. The Florida courts have a policy that says a person who has been convicted of a crime cannot sue their lawyer for malpractice unless they have been proven innocent. This is because the criminal court should handle issues of ineffective representation and it wouldn’t make sense to allow someone to sue their lawyer for damages if they haven’t been able to prove they were wrongfully convicted. The Supreme Court of Florida decided that if a person is convicted of a crime and wants to sue their lawyer for messing up their case, they have to first get their conviction reversed. This is to make sure the person is actually innocent before blaming the lawyer. Other courts in California and Pennsylvania have said similar things for different reasons, like not wanting to discourage lawyers from taking on criminal cases. In some states, a person who claims their lawyer messed up their criminal case has to first prove they were innocent before they can sue the lawyer. But in other states, the person can sue the lawyer without proving they were innocent first. Each state has its own rules about this, and some states have a “two track” approach where the person can sue the lawyer at the same time as trying to prove their innocence. In a court case, the Seventh Circuit said that in Illinois, if a defendant wants to sue their lawyer for being guilty of a crime, they have to prove that they would have been found not guilty if their lawyer had not been negligent. Alabama and North Dakota have different standards for suing a lawyer for negligence in a criminal case. Maryland also has a standard for suing a lawyer, but it’s not as strict as other states. The District of Columbia Court of Appeals said that the standard for judging malpractice claims in criminal cases is different from the standard for ineffective assistance of counsel claims. They also said that the result of the criminal trial would have to be different for a malpractice claim to be successful. Other courts in Delaware and Tennessee have also adopted this standard for criminal malpractice claims. Most courts require a criminal defendant to be exonerated on appeal or in post-conviction proceedings before they can sue their lawyer for malpractice.

Source: https://www.floridabar.org/the-florida-bar-journal/a-profession-for-the-new-millennium-restoring-public-trust-and-confidence-in-our-system-of-justice/