After the Supreme Court decision in Peeler v. Hughes & Luce, criminal defense lawyers felt that they had immunity from malpractice. Ms. Peeler was convicted of tax fraud and sentenced to five years. She sued her criminal defense counsel for malpractice because he had failed to communicate a plea-bargain to her under which she was offered immunity. The Supreme Court dismissed her lawsuit, ruling that a criminal defendant could not sue for malpractice unless and until they had been exonerated, through direct appeal or post-conviction habeas corpus relief.
In its recent decision of Gray v. Skelton, No. 18-0386, 2020 WL 868122 (Tex. Feb. 21, 2020), the Supreme Court modified its holding in Peeler and its prior holding in Hughes v. Mahoney & Higgins, which tolls limitations on legal malpractice claims during appeals on the underlying case. Both modifications make it easier to prosecute legal malpractice claims against criminal defense attorneys.
Ms. Skelton, herself an attorney, was convicted of forging a will. Her story is compelling, and it is hard to understand why she was prosecuted at all, but she was—and convicted. She appealed, alleging, among other things, that her trial counsel rendered ineffective assistance in violation of the Sixth Amendment. The Court of Appeals upheld her conviction, and the Court of Criminal Appeals refused her petition for review. Thereafter, she filed a habeas petition, again alleging ineffective assistance. The district court denied the writ, but the Court of Appeals agreed with her and vacated her conviction. The State then dismissed the charges without a second trial. And Ms. Skelton sued her original attorney for malpractice.
The first issue presented by these facts is how a criminal defendant establishes the “exoneration” or “actual innocence” requirement of the Peeler decision. Ms. Skelton argued that having her conviction vacated and all charges dismissed was enough, particularly when she is entitled to a presumption of innocence. Her former lawyer sought dismissal of the claims against him, arguing that her habeas petition may have established his ineffective assistance, but it did not establish her innocence, and therefore, under Peeler, she could not sue him.
The court rejected Ms. Skelton’s “presumption of innocence” argument, observing that the presumption is merely a burden of proof rule, and Ms. Skelton might actually be guilty of the crime even if she had been acquitted. Had the court stopped there, the only criminal defendants who would ever be allowed to pursue a malpractice claim would be ones who secured a finding of actual innocence in a subsequent habeas corpus proceeding. Securing a reversal and a second trial and an acquittal wouldn’t even be enough because that only established that the prosecution failed to carry its burden.
Rather than denying the right to pursue a malpractice claim to all such criminal defendants, the court adopted a modified procedure and a change to the law of professional negligence. For a criminal defendant, the court added to the four original elements of a malpractice claim (duty and a breach of the duty that proximately causes damage) a fifth requirement. Once the conviction is vacated, the plaintiff must obtain a jury finding of actual innocence in the malpractice case itself. The first question the jury will be asked is whether the plaintiff was innocent of the charge and, upon an affirmative answer to that question, the traditional legal malpractice jury issues would be submitted. The plaintiff’s burden of proof on the innocence question is the same as on all other questions: a preponderance of the evidence.
The second issue the court decided deals with the calculation of limitations for a criminal defendant’s legal malpractice claim. The Hughes tolling rule tolls limitations during direct appeals for the criminal defendant the same way it tolls limitations for the civil litigant. The ineffective lawyer representing Ms. Skelton argued, however, that the Hughes tolling rule should not apply to habeas corpus proceedings since they may not be initiated until years after the conviction and since there can be multiple habeas proceedings, one after the other. To solve this problem, the court extended the Hughes tolling rule to toll limitations for the time a habeas corpus proceeding is pending., but there would be no tolling during any gaps between direct appeals and habeas corpus. Thus, a criminal defendant who initiates a habeas corpus proceeding less than two years after the conclusion of all direct appeals would still be able to pursue a timely legal malpractice claim if the habeas proceeding is successful.
The first and most obvious lesson for the criminal defense lawyer from the Skelton case is that they may now be sued for malpractice if they provide ineffective assistance to a criminal defendant client. If you don’t have insurance, it might be worthwhile to consider it. A second related lesson is that criminal defense attorneys should keep track of their clients’ post-conviction activity and track their appeals and habeas proceedings before they discard files. Getting sued without the file cannot only deprive you of the ability to defend yourself, it can also result in a spoliation instruction for destroying evidence.
This article first appears in the publication, Voice of the Defense, in the April, 2020 issue.