Concept
Causation
Civil liability to client, including malpractice
Causation
Causation is where many otherwise strong malpractice claims fail. A negligence claim against a lawyer has four elements: duty, breach of the standard of care, causation, and damages.1 A client can prove the first two, and can even prove that the lawyer broke an ethics rule, and still recover nothing if the lawyer's conduct was not a legal cause of any loss. The Restatement states the condition plainly: an actor is liable for an invasion of another's interest only if the actor's conduct is a legal cause of the invasion.2
Breach and causation answer different questions. Breach compares what the lawyer did with what a reasonable lawyer would have done. Causation asks where the client would have ended up had the lawyer acted properly, and answering it means reconstructing a world that never existed. In that world the claim might have failed anyway, the adversary might have been unable to pay, or the deal might have collapsed for reasons unrelated to the lawyer. The client must prove the reconstruction, so doubt about it defeats the claim however careless the lawyer was.
Legal cause therefore covers two inquiries. The factual inquiry asks whether the lawyer's negligence made a difference to what happened to the client. The fairness inquiry, proximate cause, asks whether the lawyer should answer for a result the lawyer did cause. The client must satisfy both.3 The proof also changes with the kind of loss, so the later subsections take up lost lawsuits, spoiled transactions and settlements, and criminal convictions in turn.
Factual Cause
Factual causation requires that the lawyer's conduct be significantly linked to the damages the client alleges. The principles are those of ordinary negligence law, and they demand proof without demanding certainty: the client need not prove causation with absolute certainty, but the evidence must establish it beyond mere possibility or speculation.4
The most common way to prove factual causation is the but-for test, under which the client must show that, but for the lawyer's negligence, the harm would not have occurred.5 A client who says a lawyer failed to perfect an appeal, for example, must prove that the appeal would have succeeded had it been properly perfected.6 The client must also show that a different series of events would, more likely than not, have unfolded had the lawyer performed properly. Proof that another sequence merely might have occurred falls short.7
The but-for requirement does real work. Breach looks backward at what the lawyer did, but it says nothing about what a careful lawyer would have produced, because that depends on facts the lawyer never controlled: the strength of the claim, the other side's ability to pay, the law the court would have applied. Without the requirement, the lawyer would insure every unfavorable result, and clients would recover for losses the underlying dispute had already fixed.
Causation is never presumed, however serious the lawyer's negligence. A new associate with no experience and inadequate supervision who makes serious errors at trial leaves the client still obliged to prove that the errors adversely affected the result.8 Even a divorce lawyer's sexual relationship with the client, conduct no one would call proper, did not support recovery in Vallinoto v. DiSandro, because the client could not prove that her legal position was damaged.9 The seriousness of misconduct measures how far the lawyer fell short, while damages measure what the client lost, and the two can sit far apart. A presumption of causation would turn a malpractice suit into a penalty for misconduct, and answering misconduct as such is the work of discipline, which this chapter separated from civil liability at the outset.
Because the but-for question asks whether the client would have ended in the same place with a flawless lawyer, many failed claims share one feature: something other than the lapse had already fixed the client's position, or the client cannot show that the lapse cost anything. Five settings recur:
- A lawyer who fails to file a claim the client can still pursue without prejudice has caused no harm, because nothing was lost, as in Moscatello v. University of Medicine and Dentistry of New Jersey.10
- A lawyer who fails to file a claim already barred by the statute of limitations has caused no loss, because the claim was worthless before the lapse, as in Minn-Kota Ag Products, Inc. v. Carlson.11
- A lawyer who fails to answer a complaint is not liable when the client had no defense to the claims, because the judgment would have been entered anyway, as in Brodeur v. Hayes.12
- A lawyer who negligently fails to search for attachable assets is not liable when the judgment debtor had no assets of value, because there was nothing to reach, as in Brown v. Kelly.13
- A lawyer who fails to tell the client about a settlement offer commits a clear breach, but the client recovers nothing without proof that the omission cost some money, as in Coastal Orthopaedic Institute, P.C. v. Bongiorno.14
Exam stems tend to describe the breach vividly and then slip in the one fact that defeats causation. The question to ask of a missed deadline is what the expired claim was worth.
The lapse is identical in the two scenes, and the difference lies entirely in the claim the lapse destroyed. A client therefore has to prove how the underlying matter would have come out, and that proof is often heavy. A client told that a medical malpractice claim lacked merit, as in Togstad, would have to prove the underlying claim against the doctor, including the expert testimony it required, before showing that the lawyer's advice cost anything.15 A later subsection takes up that case-within-a-case requirement in detail.
The same result can follow when the lawyer's errors were real and still changed nothing. In Faber v. Herman a lawyer drafted a stipulation that tried to divide the husband's retirement benefits by a means the law did not permit and failed to tell the client about the steps taken to correct it, yet the Iowa Supreme Court found no damages because the husband had agreed to an even division and received one.16 In AmBase, a company claimed that bad tax advice forced it to carry a multimillion-dollar loss reserve, but the New York Court of Appeals found no factual causation, because the reserve had been on the books for years before the firm was hired and stayed there after the advice.17 In each case something other than the lawyer's lapse set the client's position.
Speculation is the other way a client fails the test. In Bristol Co. v. Osman, a claim based on advice about the defense of laches, a Colorado appellate court held the allegations too hypothetical to support damages, because they identified no actual harm, only one that might have occurred had events unfolded differently.18 Uncertainty alone does not make a claim speculative. In Geddes v. Campbell a California court found causation provable although it required showing that the client would have followed different advice and that a third party would have signed a release, because the plaintiff could testify about the first, and the third party could be asked about the second.19 The line falls between a chain of events that evidence can establish and a bare possibility that no witness could confirm or deny.
The settlement cases draw the same line. In Christensen & Jensen, P.C. v. Barrett & Daines, a client argued that co-clients would have accepted a $150 million offer had the lawyers explained it better, and the Utah Supreme Court found no causation, because the offer was conditioned on all co-clients joining a request to vacate a judicial opinion, the co-clients had agreed that any settlement required unanimity, and the others were adamant that they would never have settled on those terms.20 A client who says a better-informed decision would have produced a settlement must show that a settlement was actually attainable.
Several lawyers can each be a factual cause of one loss. If one lawyer negligently omits important provisions from a contract and successor counsel negligently fails to discover the omission while reformation is still possible, the client may sue either lawyer or both, because but for the first omission the contract would have contained the key provisions, and but for the second lapse the omission would have been corrected.21 The but-for test also yields to a companion rule: conduct that was independently sufficient to cause the harm is a factual cause even when the but-for test cannot be met.22
Without this rule each negligent lawyer could escape by pointing at the other, and the client would recover from neither although two lawyers' carelessness had ruined the document. The rule does not help a client whose claim was worthless anyway, because there was then no loss for the lawyer's lapse to cause.
Proximate Cause
Factual cause is necessary but not enough. Proximate cause is a policy-based inquiry into fairness: even if the lawyer factually caused the client's loss, the lawyer is not accountable if it would be unfair to impose responsibility.24 Courts express that fairness in several ways. A loss may be too unforeseeable to charge to the lawyer, may lie outside the risks that made the conduct tortious, or may have resulted from so many intervening forces that blaming one lawyer would be unjust. The familiar formula captures the last idea: a proximate cause produces injury through a natural and continuous sequence of events unbroken by any effective intervening cause.25 In most suits by clients the question is answered quickly. It becomes serious only when the harm is unusual or when events after the lapse let the lawyer argue that the loss belongs to someone or something else.
The foreseeability that fairness requires is a loose kind. Courts that frame proximate cause in terms of foreseeability do not demand that the exact harm could have been predicted, because many blameworthy defendants would then escape liability. It is enough that the lawyer should have foreseen, in general terms, harm to the class of persons that includes the client and the general type of harm that occurred. Differences in how the harm came about are irrelevant, and so is the fact that the harm turned out greater than expected.26 A lawyer who could have guarded against a general danger has no fairness complaint merely because the danger arrived by an unexpected route.
This loose standard explains why scope of risk is rarely contested when the plaintiff is a client who lost money. The client hired the lawyer to protect a financial interest, so a financial loss that follows careless work is almost always the kind of harm the carelessness threatened, and the usual foreseeability tests are clearly met.27 In Rhine v. Haley the lawyer did not file a lien that could have secured the client's right to payment from a debtor, and the debtor then sold the property and absconded, so the omission created the very risk that came to fruition.28 A lien exists to protect a creditor against a debtor who disposes of the property or disappears, and when that is what happens, the loss falls inside the risk that made leaving the lien unfiled negligent.
Where scope of risk does become a live issue, the cause is usually a type of harm that is unusual or unforeseeable.29 In TIG Insurance Co. v. Giffin Winning Cohen & Bodewes, P.C., the Seventh Circuit held that an insurer could not recover, in its malpractice suit against the firm hired to defend its insured, the huge expense of fighting a discovery motion, because it was unforeseeable that a failure to produce documents would generate a bill for attorney's fees on that scale.30 The client in Rhine lost exactly what the omitted lien was meant to protect. The insurer in TIG sought a consequence that a careful lawyer would not have linked to the lapse, so fairness stopped liability short of it.
Fairness questions also arise when something happens between the lawyer's lapse and the client's loss. An intervening cause is an action or force that contributes to the loss, and it is called a superseding cause when it breaks the chain and relieves the earlier wrongdoer.31 The principles are the same as in any tort case. An intervening act or omission that was foreseeable, or that was part of the risks making the lawyer's conduct tortious, probably does not prevent a finding of proximate cause, while one that was unforeseeable and outside those risks will probably be treated as superseding.32 The same test governs each intervening event discussed below, and the three that recur in malpractice cases are judicial error, later negligence by other lawyers, and the client's failure to catch the problem.
Judicial error is the clearest example of a superseding cause. Courts have held that a judge's mistake can be a new and independent cause that relieves a trial lawyer of liability, as long as the lawyer did not contribute to the error and the error was not otherwise foreseeable.33 In Stanfield v. Neubaum the Texas Supreme Court held that a trial court's legal error on an agency issue was a new and independent cause of an adverse usury judgment, so the clients could not recover from their lawyers the cost of the appellate litigation that followed.34 The court reasoned that lawyers cannot guarantee a perfectly functioning judiciary or an error-free trial, and that they should answer for the harm they actually cause and not for harm caused by a judge's mistake. The record showed no evidence that the lawyers contributed to the error or that it was reasonably foreseeable, and the lawyers did not need expert testimony to negate causation.35
The two conditions in that holding carry the analysis, because each answers a different objection to calling the judge's mistake independent.
A judge's mistake supersedes only when it stands apart from anything the lawyer did, which is why the exception rewards the lawyer who played no part in producing it.
Later negligence by someone else usually does not break the chain, even when the later conduct is careless. A person who causes an automobile accident is liable for injuries resulting from the victim's loss of blood or exposure to bad weather, even if someone else could have stopped to render aid before those consequences developed.36 American tort law is reluctant to let a tortfeasor escape because someone else subsequently failed to prevent the threatened harm, so a subsequent omission, even a negligent one, usually does not break the chain of causation.37 The same reasoning applies to lawyers. A first lawyer who omits important provisions from a contract is not relieved when a second lawyer reviews the document carelessly and fails to discover the omission while reformation was still possible, and both lawyers can be proximate causes of the resulting loss, since failing to catch the omission was the very harm that careless review risked.38
The client's own failure to detect the error is treated the same way. A lawyer who inadvertently leaves a critical residuary clause out of a will may be found to have proximately caused harm to the intended beneficiaries, even though the client reviewed the will before signing and had an opportunity to spot the omission.39 The client hired the lawyer because the client could not do the lawyer's work, so a client's failure to catch the lawyer's mistake is exactly what a careless lawyer should expect.
Successor counsel presents the hardest version of the problem, because the law sometimes holds that responsibility for preventing harm shifted to another person. Those cases are limited to situations where the earlier wrongdoer did everything possible to prevent the harm, or where the other person's failure to act was so unforeseeable, bizarre, or abnormal that holding the first wrongdoer liable would be unfair.40 Some decisions say that when the duty of care passes from the original lawyer to a successor, liability passes too, provided the successor had a fair opportunity to undo or avert the harm.41 The better view is that hiring a new lawyer does not insulate the earlier lawyer from antecedent negligence that played a substantial role in causing the harm. In Lopez v. Clifford Law Offices, P.C., the Illinois Appellate Court held that a client's consultation with possible successor counsel, who declined the case before the limitations period expired, did not absolve a firm that had misstated the limitations period when it declined the representation.42 The Alaska Supreme Court in Gefre v. Davis Wright Tremaine, LLP likewise declined to adopt a bright-line rule that a lawyer who refers a case elsewhere while time remains on the limitations period cannot be liable, and it applied the ordinary substantial-factor test instead.
Responsibility shifts only on facts like these.
If the successor had never reviewed the file and nobody had warned of the deadline, the first lawyer's earlier error would remain a proximate cause, as in the contract example above. The first lawyer escapes only by pointing to a warning and a handoff that a later lawyer then disregarded.
Case Within a Case
When the lost interest is a lawsuit, factual cause takes a distinctive shape. The client must show that, but for the lawyer's negligence, the client would have won the underlying case, a requirement known as the case-within-a-case rule.44 The name describes the structure of the trial: inside the malpractice action sits a second action, the one the client says the lawyer lost, and the client must try that second action well enough to win it before the first can produce any recovery.
The client therefore has two claims to prove: the claim that was lost, and the claim that the lawyer's negligence caused the loss.45 In practice the malpractice court reconstructs the original action. The issues that would have been tried the first time are tried between the client and the former lawyer, and in the usual case, where the client lost a claim, the lawyer takes the place of the original defendant and bears the burdens that defendant would have borne.46 The tribunal must decide how the parties would have proceeded had the lawyer not erred, then act as the earlier decision-maker to find the probable outcome, which often means the client puts on testimony the lawyer's error kept out of the first trial.47 The instructions that should have been given in the underlying case, special verdict forms included, are the ones used in the malpractice trial.48
The rule follows from how the client's loss is measured. Compensation puts the client where a competent lawyer would have, and the only way to learn where that is runs through the lost case, because a claim is worth what it would have produced when tried. Two things are being proved, each for its own reason. Proof of the underlying claim keeps a client from recovering value that never existed, since a claim that was legally barred, unsupported by evidence, or doomed on the merits was worth nothing before the lawyer touched it. Proof that the lawyer's negligence caused the loss ties liability to the lawyer's own conduct, so a careless lawyer pays for the difference the carelessness made and the client keeps the risk of an unwinnable dispute. A client may establish an obvious breach and still fail at this stage.49
The Togstad case shows how heavy the burden can become. Mrs. Togstad had consulted a lawyer about a medical malpractice claim against a neurosurgeon whose treatment allegedly injured her husband, and the lawyer advised her that she had no viable claim. Her claim against the lawyer assumes that, without that advice, she would have sued the neurosurgeon and recovered.50 To prove it, she would have to prove the underlying medical malpractice case, expert testimony included, because otherwise she could not show the advice deprived her of anything of value.51 She would also need a legal expert to show that the lawyer was negligent, unless the negligence was obvious.52 She must prove the doctor's negligence in order to prove the lawyer's, so the malpractice trial needs witnesses from two professions.
A client whose underlying case could not have succeeded recovers nothing, however careless the lawyer was. In Nash v. Hendricks a lawyer negligently lost a military client's medical malpractice case against a government doctor, yet the lawyer prevailed in the later malpractice action because the evidence showed that the Feres doctrine, which bars a service member's suit against the government for injuries incident to military service, defeated the claim from the start.53 A non-negligent lawyer would have lost too, so the legal bar had already fixed the client's position before the lawyer's error. Missing proof produces the same result. In Aquino v. Kuczinski, Vila & Associates, P.C., a slip-and-fall claim was allowed to lapse, and the lawyer won summary judgment because the former client offered no evidence that the casino created the dangerous condition or knew of it, which meant she could not show she would have prevailed on the premises liability claim.54 Even the loss of a procedural right follows the pattern: when a lawyer negligently loses the client's right to a jury and the bench trial that follows is conducted without error, losing the case does not by itself show damages, since the client might have lost before a jury too.55
The client in that scene holds what the slip-and-fall plaintiff lacked, which is evidence of each element of the lost case, so the case within a case is won or lost on the proof the client can assemble at the second trial.
Winning the lost case is only part of the showing. The client must usually also prove the amount the original case would have produced, and a majority of jurisdictions add that the award would have been collectible, which the client may do by showing, for example, that the original defendant carried adequate insurance.56 Washington's decision in Schmidt v. Coogan follows a minority view that makes uncollectibility an affirmative defense the lawyer must plead and prove.57 The reconstruction can also show a partial loss. Where trial counsel's failure to argue a key issue produced a lower verdict than competent argument would have, the client recovers the difference between what should have been obtained and the verdict actually entered, a measure the damages sections take up again.58
Because the second trial contains the first, litigation malpractice cases can be exceedingly complex. A matter in a sophisticated field, or one that turns on the statements and expectations of many entity representatives, may require numerous witnesses and documents, and jurors may lose the thread, so some cases settle and some states let the underlying action be severed for a separate trial.59 The malpractice defendant also keeps some freedom to raise defenses that were never asserted in the first trial, so the reconstruction is not limited to what was actually litigated.60
The obvious shortcut would be to ask the original judge or jurors what they would have done had the lawyer performed properly, and the law closes it. The former judge may not testify, for reasons of judicial ethics, because the prestige of the judicial office would line up behind one side of the malpractice case.61 Jurors from the first proceeding may not testify either, for reasons of impracticality, finality, and the integrity of jury deliberations.62 The malpractice fact-finder must therefore infer the probable result from the evidence of the underlying case itself.
One narrow relaxation applies where the lawyer's own conduct destroyed the proof. In Galanek v. Wismar, a California appellate court shifted the burden of proof to the lawyer where the lawyer's alleged failure to take reasonable steps to preserve the client's car in a products liability case made it impossible for the client to prove the underlying claim.63 Other courts tell the jury that it may infer, or in the absence of contrary evidence must presume, that the missing evidence favored the client, particularly where the spoliation was culpable, unexcused, and clearly injurious to the client.64 The reason is fairness, since it would be unjust to demand that the client prove what the lawyer's wrongdoing took away. Many jurisdictions have little precedent for shifting the burden, however, so the default remains that the client proves the underlying case.65
Transactional and Settlement Cases
Much legal work never reaches a courtroom. A lawyer who drafts a contract, structures a sale, or negotiates a release leaves no lost judgment for a malpractice court to reconstruct, and where the injury claimed does not depend on the merits of an underlying action, the case-within-a-case method does not apply.67 The factual-cause question survives in a different form. This subsection follows it through two settings: the transaction that closed on bad terms or should never have closed, and the settlement that was accepted too cheaply or rejected on the lawyer's advice.
When no lawsuit was lost, the working question is whether, but for the lawyer's negligence, the client would have obtained a more favorable result than the one the client got.68 The Minnesota Supreme Court describes this as a modification of the ordinary but-for element for transactional malpractice, and many courts state the requirement the same way.69 A more favorable result takes one of two forms. Under the better-deal view, the counterparty would have given the client more, such as a higher price or a protective term the documents left out. Under the no-deal view, the client would have declined to enter the transaction and so avoided every loss that flowed from it.70 Neither view requires a showing of ultimate victory in some hypothetical lawsuit, a point the Texas Supreme Court made when it rejected the lawyers' claim that such a showing is always demanded.71
The better-deal version is associated with Viner v. Sweet, which applies the but-for requirement to a lawyer's drafting. A client who says faulty documents cost money must prove that the documents were a but-for cause of financial harm, which means proving that competent documents would have left the client better off.72 The no-deal version fails when the client would have proceeded regardless. In Roberts v. Chimileski, a lawyer who did not reasonably describe the risks of a development scheme was held not liable to clients who would have gone ahead with the scheme even had they known those risks, because the inadequate disclosure changed nothing about what the clients did.73
Proof is harder here than in a lost lawsuit, and the reason lies in how bargains are made. Most lawsuits have a right answer, the judgment the court would have entered, but the Seventh Circuit explained in Nicolet Instrument Corp. v. Lindquist & Vennum that a negotiation has no “correct” outcome.74 Every point between the lowest price one side would accept and the highest the other would pay is a possible deal, and where the parties land depends on bargaining skill, on what each would lose if talks collapsed, and on luck.75 The facts of Nicolet show the difficulty. A company had co-signed a ten-year lease for its wholly owned subsidiary and then sold the subsidiary, and it said it had told its lawyers to negotiate a release of its contingent rent liability. The lawyers did not, the former subsidiary went bankrupt, and the company paid $2.6 million under the lease.76 The omission is easy to see, but nothing in the record says what the buyer would have done if asked.
Circumstantial evidence is the answer the law gives. Viner holds that plaintiffs in transactional malpractice cases may prove the additional terms an adversary would have accepted through circumstantial evidence and are not limited to what their business adversaries say on the stand.77 A rule that required the adversary's own testimony would defeat nearly every claim, because the counterparty has no reason to admit that it would have conceded the point and every reason to say it never would have.
The same loss claim collapses when the better result is only asserted. A defendant will always answer that what would have happened is speculation, and the client must prove by a preponderance of the evidence that damages were in fact suffered.78 In AmBase Corp. v. Davis Polk & Wardwell, incomplete tax advice was held not actionable where the client claimed it cost business opportunities but produced no evidence that those opportunities would not have been lost in any event.79 The seller above won because her documents made a concession probable. The AmBase client lost because the record contained only the client's belief that competent advice would have preserved the opportunities, and a belief is not evidence of what a counterparty would have done.
Settlements raise the same question in a setting where the lawyer's advice is the likely cause of the client's decision. Most states allow a malpractice suit even after the client has accepted or paid a settlement, and the client may claim that the settlement was too low, or that the lawyer failed to recommend or document one.80 The decision to settle belongs to the client alone, but clients rely heavily on counsel's advice in making it, which is how advice becomes a cause of the outcome.81 Better-settlement claims make sense in part because in many fields more than 90 percent of meritorious cases settle, so a case can have real settlement value even when the plaintiff would probably lose before a judge and jury.82 In Bellino v. McGrath North Mullin & Kratz, the adversary offered to settle for $1.5 million, the lawyers advised the client that he could do much better, the client's ultimate losses reached $3.1 million, and a jury verdict for the client was reinstated.83
The settlement claim must still clear a causation hurdle. Courts may treat the argument that a non-negligent lawyer would have obtained a larger settlement as too speculative to support any recovery, and some apply the case-within-a-case approach, under which the client prevails only by showing that a more favorable outcome was likely, which is the burden the underlying case would have imposed at trial.84 Jurisdictions differ on how much of the underlying merits the client must reconstruct. The common thread is proof that a better result was likely, because hope is not enough. A lawyer's failure to relay an offer shows how causation and breach separate. The omission is a clear breach of the duty to keep the client informed, yet it is not actionable without proof that it cost the client some money, as in Coastal Orthopaedic Institute, P.C. v. Bongiorno.85
The error-of-judgment rule taught earlier operates at the breach step, ahead of causation. A lawyer who recommends for or against settlement on the basis of reasonable professional judgment is protected, and the protection is particularly strong in this setting.86 It does not cover every recommendation. In Thomas v. Bethea the court treated a recommendation to settle as protected judgment, while in Wood v. McGrath, North, Mullin & Kratz a recommendation to settle without disclosing that the agreement conceded issues the client might have won was held not to be an exercise of best judgment.87 A client attacking settlement advice therefore faces two separate obstacles. The first is showing that the advice fell outside reasonable judgment, and the second is showing that proper advice would likely have produced a better settlement.
Criminal Defense Malpractice
A client convicted after allegedly negligent criminal defense faces a harder version of the causation requirement than any client discussed so far. The ordinary but-for analysis still governs, so the client must show that a competent lawyer would have produced a better result.89 Courts add a threshold in front of that showing. Most require the client either to obtain exoneration, meaning a court has set the conviction aside through direct appeal or collateral review, or to prove actual innocence, meaning the client did not commit the charged offense.90 The reason they give is a statement about causation: absent one of those showings, the court treats the client's own crime as the cause of the conviction, which leaves no room to charge the same result to the lawyer.91
The reasoning becomes clearer when you follow what the malpractice claim has to prove. In a lost civil case the better result is a recovery the client was entitled to, and the case-within-a-case method asks whether the client would have won it. In a criminal case the better result is an acquittal or a dismissal, and a client who in fact committed the offense was never entitled to that result, because the law attached the punishment to what the client did. Courts that adopt the strict view say that criminals should not profit from their own crimes, and the rule resembles the one in malicious prosecution, where a plaintiff who is guilty in fact cannot recover even if the prosecution lacked probable cause.92 A lawyer's blunder may have cost a guilty client a chance to go free, but on this view that chance is one the client was never owed.
Other features of criminal representation also explain why courts depart from ordinary negligence principles here. The client has another avenue that attacks the conviction directly, a claim of ineffective assistance of counsel. The plaintiff was convicted of or pleaded guilty to a crime, which makes many courts reluctant as a matter of policy to allow recovery, and many such clients had public defenders, which leads some courts to add protections for the lawyers who take on these cases.93 Ineffective assistance is raised in the criminal case or in post-conviction proceedings, and its remedy is relief from the conviction or sentence, not damages. That limit is why a malpractice suit is the only route to money for the years lost, and it is also why courts guard that route with a threshold. The two proceedings are linked, because success on an ineffective-assistance claim is the usual way to obtain the exoneration some states demand. In Rantz v. Kaufman the Colorado Supreme Court allowed a client to pursue malpractice while still seeking post-conviction relief, but noted that a final ruling on ineffective assistance might bind the client in the malpractice case.94
Jurisdictions divide on what the client must show first, and the logic beneath the division matters more for an exam answer than the case names. The three positions are these:
- Under the actual-innocence approach, the client must prove that he did not commit the charged offense, by a preponderance of the evidence in Piris v. Kitching, and Humphries v. Detch joined what it described as the majority of jurisdictions in requiring that proof.95
- Under the exoneration approach, the client must first obtain judicial relief from the conviction, so Coscia v. McKenna & Cuneo requires reversal of the conviction or other exoneration by post-conviction relief, and Trigg v. Farese requires judicial relief before the malpractice action may be brought.96
- Under the third approach, the client need show neither, and Paxman v. King observed that success in a post-conviction proceeding or evidence of actual innocence may help prove causation or harm but is not always necessary.97
The approaches differ in how fully they accept the crime-as-cause reasoning. Actual innocence applies it most completely, because it asks whether the client in fact did what the state charged. Exoneration sets a lower bar, because a court can set aside a conviction for reasons that say nothing about guilt. The third group drops the gate and treats post-conviction success or proof of innocence as evidence of causation and harm, and the Restatement of the Law Governing Lawyers expressly disapproves the actual-innocence requirement.98 Passing the gate is only the start of the claim. A client who has already won reversal of the conviction in a Coscia-type state may go on to try to prove breach, causation, and damages, while a client who remains convicted and offers no proof of innocence in an actual-innocence state loses at the threshold, however careless the lawyer was.
The difference between the first two approaches turns on a distinction courts draw between legal innocence and actual innocence. Post-conviction relief can establish that the client should not have been convicted under the governing rules, which is legal innocence, without showing that the client did not commit the offense.99
The pair shows why it is a mistake to equate exoneration with innocence. The first client's conviction is gone, yet the reason courts demand innocence applies to him in full, because the loss he claims follows from conduct he concedes. The second client's conviction rested on the very omission she blames on counsel, and nothing about her own conduct explains the result. An exam stem that mentions a vacated conviction therefore leaves a second question open, which is whether the governing jurisdiction asks for relief or for innocence.
Critics argue that the requirement goes too far. A dissenting judge in Ang v. Martin wrote that it creates an almost impossible burden and provides almost absolute immunity to criminal defense lawyers, and another dissenter observed that proving innocence means proving a negative and invites malpractice because the defense lawyer knows the standard of care is effectively lowered.100 A dissent in Peeler v. Hughes & Luce made a related point, that the rule protects public morality by shielding every criminal defense lawyer from civil redress, no matter how egregious the lawyer's conduct.101 That criticism explains why some courts demand only exoneration and a few demand nothing at all.
The gate has limits, and courts have applied it only where the suit attacks the conviction. Some courts have found proof of actual innocence irrelevant when the client sues only for a refund of fees, one court held the rule inapplicable to a claim for breach of fiduciary duty against a criminal defense lawyer, and another recognized an exception where the client claimed that the charged conduct was not a crime when charged and that the lawyer's negligence prevented proof of innocence in post-conviction proceedings.102 Prior proceedings can also work against the client. A guilty plea may estop the client from arguing that he was innocent or that the lawyer's negligence caused his incarceration, and issues decided against the client in post-conviction proceedings may likewise bar relitigation.103 Where exoneration is required, courts must also decide when the claim accrues, and many that start the clock earlier let the client file on time and then stay the malpractice case until the post-conviction proceedings end, a problem the sections on limitations take up.104