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The California Supreme Court unanimously ruled Monday that a former criminal defendant cannot sue his lawyer without a post-conviction exoneration. In Coscia v. McKenna & Cuneo, the justices reiterated an earlier ruling in which they held that actual innocence was required for legal malpractice claims. Chief Justice Ronald George wrote for the court that the rulings “avoid a potential adverse consequence of distinguishing between convictions based upon guilty pleas and convictions after trial.” He added, “If only the client who pleaded guilty could recover for malpractice without first obtaining post-conviction relief, attorneys might be tempted to practice defensive law when faced with the choice of advising a client to enter into a plea agreement or proceed to trial, in order to insulate themselves from malpractice actions.” Coscia stemmed from the criminal case of Nicholas Coscia, an attorney who pleaded guilty to one count of securities fraud. He was sentenced to two years’ probation and a $5,000 fine. He later sued his attorneys at Washington, D.C.-based McKenna & Cuneo on grounds that the firm gave him negligent legal advice. Ronald Mallen, a partner with Hinshaw & Culbertson in San Francisco who represented McKenna & Cuneo, called the ruling a victory for establishing an exoneration requirement. “But it’s got a catch to it,” he added, pointing to a section of the ruling addressing the new requirement’s effect on the statute of limitations. The justices directed trial courts to stay malpractice action during the period in which a plaintiff timely and diligently pursues post-conviction remedies. But Mallen said that rule could have the effect of “increasing the frequency of claims against criminal defense lawyers” because plaintiffs will feel they may as well file a claim within the one-year period just to preserve it for later.

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