Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice. The case is called Piris v Kitching and you can read the opinion here. The Legal Profession blog has more details here.
One Justice dissented in Piris, making what I think is a persuasive argument. Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct. Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway. The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority. I agree with the dissent in this case. This view is not justified. It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client. I don't see why it makes sense to give the attorney such a free pass.