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Can You Sue Your Criminal Attorney for Legal Malpractice?

On Behalf of | Aug 9, 2022 | Firm News

Yes, you can sue your criminal attorney for legal malpractice, but only in limited circumstances.

The first hurdle is: have you obtained “postconviction relief”? In other words, have you been to court again after your conviction, and did the second court vacate your earlier conviction? Piris v. Kitching, 185 Wash. 2d 856, 862, 375 P.3d 627, 630 (2016)

“Postconviction relief” includes such actions as a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment. See, In re Pers. Restraint of Becker, 143 Wash. 2d 491, 496, 20 P.3d 409, 412 (2001). Another term for postconviction relief is “collateral attack.”[1]

If you are seeking help for postconviction relief or a collateral attack of your conviction, you need an attorney who practices criminal law.I do not do practice criminal law and won’t take your case for a collateral attack on your conviction.

If you have obtained postconviction relief, you might have a legal malpractice claim, so long as you overcome a second hurdle. The second hurdle is: can you prove you are innocent? Not just can you prove you are “not guilty beyond a reasonable doubt”, but can you prove that you are actually innocent. Piris v. Kitching, 185 Wash. 2d 856, 863, 375 P.3d 627, 630-31 (2016)[2]

In a lawsuit against your former criminal law attorney for malpractice, you have the “burden of proof”. The attorneys for your criminal lawyer do not have to prove you are guilty. You must prove you are innocent in order to win your case.

The statute of limitations is determined differently from legal malpractice in a civil case. The time is the same (three years), but the difference is in when you start counting the three years. The claim for legal malpractice in a criminal case does not “accrue” (does not exist, in other words) until the client obtained postconviction relief. Flynn v. Pierce Cty., 16 Wash. App. 2d 721, 729, 482 P.3d 980, 984 (2021).

[1] The definition of “postconviction relief” does not include a reversal by an appellate court in a direct appeal of the conviction.

[2] “We found that actual innocence is critical to a criminal malpractice claim and that “[u]nless criminal malpractice plaintiffs can prove by a preponderance of the evidence their actual innocence of the charges, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm.” Ang, 154 Wn.2d at 485. These policy concerns still serve as the underpinning of the actual innocence requirement.”