Criminal client need not show actual innocence to pursue legal-malpractice claim

By Michael A. Guadagno

A client who sues his criminal-defense attorney for negligently representing him in the sentencing phase of his criminal proceedings is not required to prove his actual innocence of the charge, the Washington Court of Appeals has held.

In Powell v. Associated Counsel for the Accused, 131 Wn. App. 810 (2006), Clint Powell was charged with solicitation to deliver a material in lieu of a controlled substance. The charge was a gross misdemeanor, with a maximum sentence of one year of confinement. Associated Counsel for the Accused (ACA), a public-defender agency, represented him.

Powell pleaded guilty and proceeded to the sentencing hearing. There, he was erroneously sentenced for a Class C felony to more than three years of confinement.

Powell discovered the error and filed a personal-restraint petition. The Washington Supreme Court granted the petition because the trial court had exceeded its legal authority in sentencing Powell to more than one year of confinement. The Supreme Court remanded the case for resentencing. But by the time the case returned to the trial court, Powell had served 20 months and had been released from incarceration.

After his release, Powell sued his criminal-defense attorneys at ACA for malpractice. ACA moved to dismiss the malpractice action for failure to state a claim, because Powell had not alleged or shown that he was innocent of the charge to which he had pleaded guilty and for which the erroneous sentence had been imposed. ACA cited Falkner v. Foshaug, 108 Wn. App. 113 (2001), which generally required that a criminal defendant who later sues his criminal-defense attorney for malpractice must prove that he was innocent of the charge that was the subject of the lawyer’s representation. The trial court granted the motion and dismissed the malpractice action.