Black v. White, Court of Appeals of California, Second District, Division Four, April 27, 2010
Facts: Plaintiff filed this malpractice action against his criminal attorney after his conviction for first degree burglary was affirmed. The trial court sustained the attorney’s demurrer to Plaintiff’s complaint on the basis that actual innocence is a prerequisite to filing a malpractice action in California. Plaintiff appealed and argued that his petition for writ of habeas corpus had not yet been decided. Accordingly, he alleged that the trial court was required to stay the action pending resolution of the underlying matter.
Issue: In the event plaintiff pursues a malpractice action in California prior to obtaining the necessary postconviction relief, should the court stay the action or dismiss it for failure to establish one of the necessary "elements" of a legal malpractice action?
Ruling: The action ought to be stayed until the underlying matter is resolved. In California, actual innocence is a necessary element of plaintiff’s malpractice action:
[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.
The Court further discussed that this policy promoted judicial economy, since issues litigated to obtain postconviction relief, including ineffective assistance of counsel, would be duplicated in a malpractice action.
This requirement of exoneration, however, poses a statute of limitations dilemma for the criminal defendant. In California, a legal malpractice action must be filed within one year of the client’s discovery of the malpractice, or four years from the date of actionable malpractice, but in no event can the time to commence the action exceed four years. In matters involving postconviction proceedings, however, the statute of limitations would run long before the individual established his "actual innocence".
Accordingly, the Court applied the "two-track approach": Although plaintiff must file the malpractice action within the applicable limitations period, the court should stay the action during the period in which plaintiff "timely and diligently" pursues postconviction remedies.
Lesson: A criminal defendant may pursue his action for legal malpractice within the statute of limitations. In the event he is not able to establish "actual innocence" because the criminal matter is not yet concluded, the malpractice action will be stayed pending a decision in the underlying action.