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Court gives criminal defense lawyers a break

By Diane Karpman

Diane Karpman

Long ago, within the profession, criminal defense lawyers were considered déclassé. Often they didn’t get paid. Sometimes, to get a continuance, they would explain to a court that they were waiting for “Mr. Green.” They were sometimes considered verbally challenged, since after a while many tended to adopt their clients’ colorful vocabulary.

Fortunately, during the last few decades, those disparaging aspersions have changed. In most quarters, criminal defense lawyers are highly respected for their invaluable work. Sometimes they are envied, because they are almost bulletproof in liability for professional negligence.

They already have decreased premiums for legal malpractice coverage. Now their premiums may decrease again, because a recent case, Wilkinson v. Zelen (Sept. 25, 2008, B2000 74)_Cal. App. 4th_, increased their protection. Historically, “Wiley v. County of San Diego (1998) 19 Cal.4th 532 held that factual innocence is an element of a legal malpractice action stemming from representation in an underlying criminal trial. Later, Coscia v. McKenna & Cuneo (2001) 25 Cal. 4th 1194 held that the legal malpractice plaintiff must obtain post-conviction exoneration in the underlying case to establish the element of factual innocence required by Wiley.” Id.

In Wilkinson, the court held “that a legal malpractice plaintiff must prove factual innocence and exoneration as to all transactionally related offenses comprising the basis for the underlying criminal proceeding . . .” Wilkinson entered no contest pleas to two misdemeanors and therefore could not establish factual innocence or exoneration. This burden is different from malpractice in civil cases, because special safeguards are built into the system, including proof beyond a reasonable doubt, exclusionary rules, unanimous jury verdicts, etc. Wilkinson alleged that she was overly intoxicated due to GHB (date rape drug), and that’s the reason she committed felony battery of an officer after she was arrested for DUI and failing to stop at the accident. She never suggested that she was innocent of the latter two offenses.

The lawyer’s mistake does not shield the client from the consequences of the underlying crime. Obviously, everyone charged with a crime is entitled to competent representation. However, the harm suffered isn’t because of the lawyer’s error, but because of the client’s antecedent criminality, which is the direct and proximate cause of their predicament. A client can’t engage in criminal conduct, then try to profit from their illegal acts. 

Clients are prosecuted based on their own criminal conduct. Still, blaming their lawyers is easier psychologically than recognizing their own fault. Former clients not only sue for malpractice, but they often write letters to the State Bar disparaging their lawyers. Generally, State Bar prosecutors look with suspicion at letters from incarcerated complainants, because they realize that the incarcerated have a lot of time on their hands. You can find this case, like just about any other, free in Google. Just cut and paste the name in quotes as your search terms.

• Legal ethics expert Diane Karpman can be reached at 310/887-3900 or at

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