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Legal Malpractice In The Criminal Context

To win a legal malpractice claim, a plaintiff must prove that the attorney’s negligence was a proximate cause of the plaintiff’s injuries. For over 15 years, it has been the law in Texas that legal malpractice plaintiffs who have been convicted of a criminal offense cannot establish the proximate cause element unless the plaintiff is later exonerated on direct appeal, through post-conviction relief, or through other measures.

The rule was the subject of Martinez v. Alvarenga, a decision handed down by the San Antonio Court of Appeals last week. In that case, the plaintiff plead nolo contendere to a charge of arson, and then sued his lawyer for malpractice. The plaintiff tried to distinguish his claim from the long-standing proximate cause rule by arguing that he did not plead guilty. The San Antonio court said, “no dice.” As long as the criminal defendant is found guilty in some sense, then the rule applies.

This rule explains why it is almost impossible to bring a legal malpractice claim based upon an underlying criminal charge. Generally, if the representation results in a “not guilty” finding, then the plaintiff is not damaged no matter how poorly the attorney performed. On the other hand, if there is a “guilty” finding, then the rule prevents the plaintiff from bringing suit unless he’s later exonerated (a rare occurrence, particularly here in Texas).


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