As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime. However, there are a few jurisdictions (last time I checked it was four) that have decided there is no need to show actual innocence.
A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases. The court tries to make a distinction; but I don't buy it.
In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal. The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence. The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.
The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.
According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence. Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”
I don't find the distinction convincing. What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved. But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.
Assume for example that a criminal defendant is guilty of possession of an illegal substance. He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial. But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights. Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence. Wasn't the defendant convicted but for the negligence of the lawyer? Didn't the guilty person suffer an actual injury?
Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same. In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases. It should. There should be no requirement to show actual innocence; period.
Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason. The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took. In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact. Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.