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.
