Legal Malpractice in the Criminal Context: Is Postconviction Relief Required?

In some states, criminal defendants are suing their lawyers for legal malpractice, claiming their lawyer didn’t do a good job. The courts are making it harder for these cases to go to trial. If you hire a lawyer and they don’t do their job properly, causing you to lose, you can sue them for legal malpractice. But in Florida, you have to prove that their mistake was the reason you lost. You also have to wait until your conviction for a crime is overturned before you can sue for malpractice related to that case. This is different in some other states, where you can sue while also trying to overturn your conviction. Florida courts have said that a person who has been convicted of a crime cannot sue their lawyer for malpractice unless they can prove that they were innocent. This is because the criminal court should decide if the lawyer did a bad job, and it would be unfair to blame the lawyer if the person really did commit the crime. The Supreme Court of Florida made a decision in the case of Steele v. Kehoe, saying that someone who has been convicted of a crime must first get their conviction overturned before they can sue their lawyer for malpractice. This is different from a regular malpractice case, because in criminal cases, the person has to prove that they are actually innocent. The Supreme Court of Pennsylvania also made a similar decision, saying that allowing malpractice lawsuits against criminal defense lawyers could make them less willing to defend people and lead to less plea bargains. In some states, a person who believes their lawyer messed up their criminal case has to prove they were actually innocent before they can sue for legal malpractice. But other states have different rules. Michigan says the person can sue at the same time as trying to prove their innocence. Ohio and Nebraska have their own rules too. New Mexico follows Michigan’s rule. The court ruled that in some places, a criminal defendant has to prove they are innocent if they want to sue their lawyer for messing up their case. Other courts say the defendant just has to show that the lawyer’s mistake made a difference in the outcome of the case. One court even said a defendant could sue their lawyer for doing a bad job, even if the defendant wasn’t wrongfully convicted. The court said that when judging a legal malpractice claim in a criminal case, the plaintiff has to show that the result of their trial would have been different if their lawyer hadn’t messed up. Other courts have also said the same thing. The majority of courts say that a criminal defendant has to be proven innocent on appeal or after conviction before they can sue for legal malpractice. Robert J. Hoffman is a court counsel who deals with cases of bad legal representation and unfair sentences for the 12th Judicial Circuit. He used to work as a public defender in New York before moving to Florida. This article is from the Criminal Law Section.

Source: https://www.floridabar.org/the-florida-bar-journal/legal-malpractice-in-the-criminal-context-is-postconviction-relief-required/