Is Actual Proof of Innocence Required to State a Claim of Legal Malpractice ?
In Moore v. Owens, 298 Ill. App. 3d 672, 674, 698 N.E.2d 707, 232 Ill. Dec. 616 (1998), also decided in 1998, the plaintiff sued the attorney who defended him on charges of driving under the influence of alcohol (DUI). Moore, 298 Ill. App. 3d at 673.
After the trial, the defense attorney withdrew.
The plaintiff then appealed the conviction.
As part of a later plea agreement on unrelated charges, the plaintiff agreed to drop the appeal of his DUI conviction, allowing that conviction to stand. Moore, 298 Ill. App. 3d at 675.
In the meantime, unaware that the plaintiff had agreed to drop the appeal of his DUI conviction, the appellate court filed an opinion that found ineffective assistance of counsel and reversed the DUI.
The case was remanded for a new trial.
On remand, the circuit court dismissed the plaintiffs DUI charge under the terms of the plea agreement. Moore, 298 Ill. App. 3d at 673.
The plaintiff then filed his legal malpractice claim against his former defense attorney.
The trial court granted summary judgment in favor of the attorney.
This court affirmed the trial court's judgment on the grounds that the plaintiff failed to plead and prove his actual innocence, a requirement to state a legal malpractice against a criminal defense attorney under, among others, Levine, 123 F.3d at 582 (applying and predicting Illinois law as requiring proof of actual innocence to state a claim for legal malpractice).
The court in Moore concluded:
"We do not believe that even if a criminal defendant is acquitted on retrial, that alone will suffice as proof of innocence, although it may be evidence for a fact finder to consider.
Rather, because of the different burdens of proof in a civil trial and a criminal trial, we believe that the plaintiff must also prove independently in the civil trial that he was actually innocent and 'not just lucky.'" Moore, 298 Ill. App. 3d at 675, quoting Levine, 123 F.3d at 583.