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By Will Jordan

We spend most of our time on this blog talking about legal malpractice decisions in which the underlying matter is civil in nature, not criminal. But, it’s worth noting the difficulty a plaintiff faces when asserting legal malpractice arising from representation in a criminal case. While a plaintiff asserting a legal malpractice claim arising from representation in a civil suit must show he most likely would have been successful in the underlying case but for the attorney’s negligence, a legal malpractice claim arising from representation in a criminal case will fail unless the client is adjudged innocent of the crime charged and all lesser-included offenses. The policy behind such a strict standard is clear: “If plaintiffs engaged in the criminal conduct they are accused of, then they alone should bear full responsibility for the consequences of their acts, including imprisonment.” Thus, even when the plaintiff proves that he spent more time incarcerated than he would have if his defense attorneys had not been negligent, the “greater culpability of [his] criminal conduct still supersedes any negligence of his attorneys” and “is the legal cause of the entire period of his imprisonment.”

Foondle v. O’Brien, No. S-15045 (Alaska, April 3, 2015).

Read the full opinion here.