Articles Tagged with Actual Innocence

Published on:

By

A former divorce client who was held in criminal contempt in the divorce case sued his former lawyers for legal malpractice. His claim was dismissed and the Court of Appeals of California, Second District, affirmed the conviction.  The case is Parchin v. Feinberg Mindel Brandt and Klein B295202, dated February 5, 2020. The explanation:

Pavel Parchin appeals from a judgment following an order by the trial court sustaining the demurrer of respondents Feinberg Mindel Brandt & Klein and John Chason (Respondents) without leave to amend. Parchin alleged that Respondents were negligent in representing him in connection with a criminal contempt proceeding in his marital dissolution action. Parchin was convicted of contempt for violating a judgment ordering the payment of spousal support. The trial court sustained the demurrer on the ground that Parchin failed to plead actual innocence and could not allege causation.

We affirm. Parchin was convicted of criminal contempt. An action for legal malpractice in a criminal proceeding requires a plaintiff to plead and prove actual innocence. Parchin’s claimed basis for his innocence—that the judgment underlying his contempt conviction was voided by a subsequent court order—is legally untenable, as confirmed by a prior appellate ruling in the dissolution action.

Continue reading →
Published on:

By

This is an important issue for legal malpractice attorneys. Is a former criminal defendant required to show actual innocence before he can sue for legal malpractice? Most courts have answered this question with “Yes,” but some states are beginning to deviate from the doctrine. The Iowa Supreme Court held that actual innocence is not required to bring a malpractice suit and but that guilt/innocence determinations are relevant to proof of proximate causation.  In other words, you can’t show the lawyer’s actions were the proximate cause of the conviction if you were really guilty.

Regarding actions for malpractice by a criminal defendant, the Restatement concludes that “it is not necessary to prove that the convicted defendant was in fact innocent,” although it notes that “most jurisdictions addressing the issue have stricter rules.” Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392 (Am. Law Inst. 2000) [hereinafter Restatement]. The Restatement adds,

As required by most jurisdictions addressing the issue, a convicted defendant 166*166 seeking damages for malpractice causing a conviction must have had that conviction set aside when process for that relief on the grounds asserted in the malpractice action is available.

Continue reading →
Contact Information
111 W Washington St, #1437
Chicago, IL 60602 Phone: 312.357.1515

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2024, The Clinton Law Firm
JUSTIA Law Firm Blog Design