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

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Powell appealed, arguing that Falkner and related case law were distinguishable. The Court of Appeals agreed and reversed the dismissal. ACA petitioned for Washington Supreme Court review. In the meantime, the Supreme Court decided Ang v. Martin, 143 Wn.2d 477 (2005), a legal-malpractice case in which Lee Smart lawyers Sam B. Franklin and Marc Rosenberg successfully persuaded the Supreme Court to adopt the Falkner rule. In light of Ang, the Supreme Court remanded Powell’s appeal to the Court of Appeals for reconsideration.

On reconsideration, the Court of Appeals declined to change its earlier decision. It concluded that the situation in Falkner and Ang was different from Powell’s. “In those cases, the plaintiffs’ allegations stemmed from the defendants’ representation during the guilt or innocence phase of the plaintiffs’ criminal trials,” the court noted. “In contrast, Powell does not contest his guilt, and the allegations of malpractice stem entirely from his attorneys’ failure to object to the court sentencing him to a much longer sentence than allowed by law. The justifications for requiring proof of actual innocence do not apply to Powell’s case.”

The Powell court noted that in Ang and Falkner, the plaintiff’s proof of innocence was inherent in proof that the lawyer’s conduct proximately caused damage to the client. If the plaintiff could not prove that he was convicted wrongly, he could not show that the criminal-defense lawyer’s conduct made any difference to the outcome of the criminal matter. That rationale did not apply to Powell’s situation, where the harm the plaintiff claimed was an excessive sentence rather than a wrongful conviction.

The Court of Appeals also considered the policy-based reasons for the Ang rule, including prohibiting criminals from benefiting from their own bad acts. That would not occur here, since Powell already had served the maximum prison sentence that the law allowed, and the excessive sentence was not a consequence of his own actions. Nor did this case involve a guilty person capitalizing on his own wrong, since these facts were “more akin to that of an innocent person wrongfully convicted,” the court held.