Kansas Supreme Court reaffirms its position that criminal defendant does not have to show actual innocence to support a malpractice claim, but does have to get post conviction relief

The majority of jurisdictions that have addressed the question, have held that, in order to support a legal malpractice claim against a lawyer whose negligence arguably causes the defendant to be wrongfully convicted, a criminal defendant has to show the he or she was actually innocent.  A few jurisdictions do not impose any requirements on such plaintiffs other than those imposed by the law of torts in any malpractice claim.  But there is a compromise position in between these two, and the Supreme Court of Kansas recently reaffirmed its adherence to it.

In a case called Garcia v. Ball, available here, the court reaffirmed its position in an older case stating that the "rule does not require a criminal defendant to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney.... But the rule does require "the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence.""

In Garcia, the lower court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which  ultimately led to Garcia serving more time in prison than his original sentence.  Garcia sued his former lawyer (Ball) and the case was eventually dismissed.  On appeal, the court held that Garcia has met the requirement of showing post conviction relief and reversed:

Accordingly, Garcia was not required to prove that he was actually innocent of either the crime for which he was illegally sentenced to a postrelease supervision term or the new crime that triggered his imprisonment for violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to obtain post-sentencing relief from the unlawful sentence. That "exoneration" occurred when the district court acknowledged that it had imposed an illegal sentence by entering a nunc pro tunc order, setting aside the illegal postrelease supervision term.