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LA: Can A Criminal Defendant Begin Legal Malpractice Claim While Criminal Trial Pending?

Augman v. Colwart, 874 So. 2d 191 (La. App. 2004)

LA: Underlying Criminal Case

Student Contributor: Laura Stein

Facts: Plaintiff was charged with possession of a firearm by a convicted felon and the court assigned him counsel. He was convicted and that conviction was eventually affirmed on appeal but his sentence was amended. His instant petition alleged his lawyer committed malpractice by failing to seek enforcement of a supposed plea bargain that would have let him plea to a misdemeanor, misrepresenting the terms of the plea bargain, not properly supervising client, not issuing certain trial subpoenas and conflict of interest. Lawyer filed exception of Prematurity in response which the trial court sustained and the client appealed.

Issue: Is a civil petition alleging legal malpractice in representing a criminal defendant premature pending the final disposition of the criminal proceeding?

Ruling: Any appreciable and actual harm flowing from the attorney’s negligent conduct establishes a cause of action upon which the client may sue. Here, his harm (conviction, sentencing and jail time) occurred prior to the filing of this action. Therefore, his petition would not appear to be premature. The trial court erred in sustaining the exception. The court of appeal held that “until the judgment giving rise to the malpractice claim becomes definitive, a legal malpractice claim does not ripen into a cause of action.” The holding cannot be that a suit for legal malpractice would always be premature pending a final and definitive judgment on the relevant issue in an underlying action, even if the preemptive period accrues prior to that time which would extinguish a cause of action- that would be unreasonable and unjust. The case was reversed and remanded but the court noted it was a narrow issue.

Lesson: A plaintiff may bring a legal malpractice action while the underlying criminal case is still pending.

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Posted in: Criminal Law, Louisiana