Oregon Personal Injury Lawyer Blog

Oregon's Supreme Court allowed a felon to sue the lawyer he hired to try to overturn his conviction on sex crimes. The lower courts had thrown out the case, because precedents held that a convict may not sue for legal malpractice until and unless the courts overturn the conviction. The Supreme Court agreed that for the criminal trial lawyer, that rule remains. But, in Keith Drollinger v. John Lamborn et. al., the court held that the "exoneration rule" does not apply to lawyers engaged after conviction to try to exonerate the convict. The case provides a good illustration of the elements of legal malpractice cases.

First, why is it that a person may not sue his or her lawyer for screwing up the criminal trial?

The answer illustrates the concept of legal harm. To win any civil case, one must show that (1) someone did something legally wrong, (2) it cause harm, and (3) the dollar value of the harm. For example, if someone drives through a red light and narrowly misses you, you many not sue the person, because you suffered no legal harm. Maybe you were scared, but you were not injured. In legal malpractice cases, one must show that if the lawyer had not screwed up, it would have made a difference. For criminal trial lawyers, if the person would have been convicted anyway, then there is no claim. So, the Oregon courts have held that before a convict may sue his criminal lawyer, he must first get his conviction overturned.

Second, did the lawyer do something legally wrong?

The allegations against the lawyer were pretty bad. The complaint alleged that the lawyer took a $5,000 retainer (1) to hire an investigator to find evidence to overturn the conviction, (2) take depositions of key witnesses and hire experts to develop evidence, (3) seek withdrawal of the guilty plea. After the lawyer signed the agreement and accepted the money, time passed, and there was an "apparent lack of activity." The court set a firm trial date and a deadline for pre-trial motions. One week before the motion deadline, the attorney told the client that he felt unqualified, and would seek a delay in the November motions and the February trial.

By December, the convict was in court against his lawyer, asking the court to force the lawyer to do the work he promised to do. The court denied the motion. Finally, in January, the lawyer asked the court for permission to quit, which the court granted. The convict faced a choice: (a) go forward to the February trial without a lawyer and without the evidence the lawyer was hired to obtain, or (b) dismiss the case and lose all chance of overturning the conviction. He dropped the case.

If those allegations are true, that type of neglect falls well below the standard of care an Oregonian has a right to expect from any trial lawyer, civil or criminal.

Next battleground for this case?

Now that the convict has the right to sue his lawyer, he still must prove that if a diligent lawyer had performed the work, then, "more likely than not," he would have achieved some post-conviction relief. In effect, he has to try the post-conviction relief case and show he would have won with new evidence. They call this "the case within the case" in legal malpractice lawsuits.

The other option the convict has is to sue the lawyer for breach of contract and, perhaps, other claims for not doing the work he contracted to do. However, the money damages would be more limited than if he wins his legal malpractice case.

I wrote this post to illustrate legal malpractice law. I did not write this to encourage people who have been convicted of crimes to contact me. So, don't waste your phone call. My legal malpractice cases involve allegations that the conduct of civil lawyers fell below the standard of care.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Carwash fundraisers. We see them all the time. Thirteen-year-old "Jane Doe" was sexually assaulted in the Dairy Queen bathroom when she attended the fundraiser. Her guardian ad litem sued the Organizer, Kids Incorporated of Dallas, Oregon and the Dairy Queen. Oregon's Court of Appeals ruled that the formal complaint did not present a valid legal claim, because it did not allege enough facts to indicate that either Kids Inc. or Dairy Queen should have anticipated the sexual assault. The opinion discussed the dividing line between when someone can sue a business for a crime committed by someone else.

Oregon's negligence law differs a bit from other states' law. The complaint must allege facts that (1) defendant's conduct caused a foreseeable risk of harm, (2) the law protects people from those risks, (3) defendant's conduct was unreasonable in light of the risks, and (4) the conduct actually caused the harm to a person at risk. The court found the complaint lacking on the first part: as a matter of law, it is not foreseeable that merely inviting strangers to a carwash with teenage girls would lead to a sexual assault in the men's bathroom.

When may crime victims sue a landowner for injuries caused by third persons? The Oregon court discussed when a victim may and may not sue. Situations that are "foreseeable" include the following.

If there has been past problems. For example, a high school girl who was raped on school premises was allowed to sue because another girl had been attacked on the school grounds just 15 days before. Another example is a person could sue a bank when robbed at an ATM in a hidden location because a similar crime occurred at another branch.

If the "place or character of the business" raises the possibility that a person might be endangered. I suppose if someone ran an underground dog-fighting establishment visited by a rough and armed crowd, then the "business" owner could reasonably foresee some trouble. By contrast, the "place or character" of a Dairy Queen is not one where an owner would reasonably anticipate a crime absent any prior issues.

In one of my cases, the Court of Appeals held that my client could sue the bar that over-served her alcohol and ejected her while she was in line for a pay phone to call for a ride home. Instead, she tried to hitchhike and was raped.

On the other hand, just the general notion that the world is dangerous and that people are bad is not enough. In fact, Oregon's Supreme Court held that a crime victim could not even sue the state for a crime committed by a state prisoner who escaped from a work crew using a van in which the supervisor was dumb enough to leave the key.

In Stewart for Jane Doe v. Kids Inc. & Dairy Queen, the facts alleged in the complaint added up to no more than (a) the car wash was advertised, (b) which solicited strangers to attend, and (c) there are a lot of strange men who would like to assault teenage girls. The court said, that's not enough to "foresee" a potential crime under Oregon's negligence law such that defendants should have taken special precautions.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.