Criminal Defendant's Malpractice Claim against his Defense Attorney: What proof is required?

Legal Malpractice Claim arising from attorney representation in criminal case


The elements of a legal-malpractice claim are (1) counsel owed the plaintiff a duty, (2) counsel breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).

In Peeler, the supreme court held that “plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise.” Id. at 497–98.

The court cited public policy concerns that convicts should not profit from their illegal conduct and allowing civil recovery for convicts would impermissibly shift responsibility for the crime away from the convict. Id. at 498. Therefore, as a matter of law, it is the illegal conduct rather than counsel’s negligence that is the cause in fact of any injuries flowing from the conviction unless it has been overturned. Id.

SOURCE: Houston Court of Appeals - 14-10-00311-CV - 8/16/11