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September 25, 2008

Wilkinson v. Zelen (2008) 167 Cal.App.4th 37

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The Second District holds that in the criminal legal malpractice context, the plaintiff must show factual innocence and post-conviction exoneration of all lesser included or transactionally related offenses..

 Jaleh Wilkinson was convicted by a jury of one felony and two misdemeanors while represented by Garrett Zelen and his firm.  After filing a writ of habeas corpus, which was uncontested, the conviction was vacated on the grounds of Zelen’s incompetent representation.  Pursuant to a plea bargain, Wilkinson entered no contest pleas to two misdemeanors.

A demurrer to Wilkinson’s legal malpractice and breach of contract claims against Zelen was sustained without leave to amend because, based on matters subject to judicial notice, Wilkinson could not show either factual innocence or post-conviction exoneration as required by precedent.

At trial, the prosecution presented a case of a drunk plaintiff driving a car, who then tried to evade police officers and who acted belligerent when finally detained.  Wilkinson maintained that she had no recollection of the incident, and was the the victim of an attempt to drug her with GBH, the “date rape” drug.

Criminal legal malpractice actions are subject to more stringent requirements than civil legal malpractice actions.  Safeguards built into the criminal law system–including proof beyond a reasonable doubt, the exclusionary rule, and the availability of post-conviction relief–distinguish malpractice actions relating to criminal defendants from those involving parties to civil litigation.  Post-conviction relief is often sufficient to afford a criminal defendant what he or she otherwise would have received from competent representation.

Factual innocence is an element of a legal malpractice cause of action stemming from representation in a criminal action.  Wilkinson’s no contest pleas to two misdemeanors are inconsistent with factual innocence.  The post-conviction relief Wilkinson obtained was sufficient to cure the harm of incompetent representation.

No court found Wilkinson factually innocent of any of the charged offenses, including a charge of felony battery on a custodial officer.  The habeas corpus petition did not raise an issue of factual innocence, but was based on constitutionally inadequate representation by Zelen.

Exoneration by post-conviction relief is also a prerequisite to obtaining relief for legal malpractice in the criminal context.  Wilkinson did not obtain exoneration by her habeas corpus petition.  Exoneration is a final disposition of the underlying criminal case such as acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People’s refusal to continue the prosecution, or a grant of habeas corpus relief.

Wilkinson could not escape these requirements by limiting her malpractice claim to representation on the felony claim.  Although, unlike precedent, Wilkinson did not enter a plea to an offense necessarily included in the felony offence, which was dismissed, the Court held that the exoneration requirement applied to all transactionally related offenses.  Wilkinson pled no contest to two offenses transactionally related to the felony charge in order to settle the criminal action and she was placed on probation for those offenses.

 The policy of California is that a plaintiff who engages in criminal conduct may not recover in a legal malpractice action.  Other remedies, such as a new trial or a plea to a reduced offense are a sufficient remedy for legal malpractice in a criminal prosecution.

Comment: Establishing legal malpractice in a criminal context presents almost insurmountable challenges under California Law.


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