Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."