Does Being Behind Bars Bar a Criminal Malpractice Claim?


By: Sara E. Brochstein
It is well established that in a legal malpractice action, a plaintiff has the burden of proving three elements: (1) an attorney-client relationship with the defendant attorney; (2) failure of the attorney to exercise ordinary care, skill, and diligence; and (3) that the attorney’s negligence was the proximate cause of the plaintiff’s damages.
Earlier this year, the Georgia Court of Appeals had the opportunity to address the first prong in relation to whether parents who had paid attorney fees to and communicated with the attorney who represented their son in a criminal matter had standing to bring a legal malpractice claim against the attorney on behalf of their son who died before the resolution of his criminal trial. Estate of Nixon v. Barber, 340 Ga. App. 103 (2017). The court concluded that no attorney-client relationship existed between the parents and the attorney. Thus, the claim was properly dismissed.
The estate did not preserve the next issue on appeal, and so the court did not have the chance to address what would have been an issue of first impression in Georgia. The issue (which has resulted in a split across the country) is what would the decedent’s estate have been required to prove in the malpractice action to recover damages from his former attorney? The majority of jurisdictions require that criminal malpractice plaintiffs prove exoneration or attainment of post-conviction relief, actual innocence, or both in order to successfully bring a criminal malpractice lawsuit. Nixon, 340 Ga. App. at 110, n.24. These jurisdictions include California, Florida, and Pennsylvania. A minority of jurisdictions choose not to enforce an innocent requirement for a malpractice plaintiff to bring a claim. Id. This remains an open question in Georgia.
If Georgia follows the majority trend, an estate representing someone who died after being convicted would likely be required to prove the decedent’s innocence in order to successfully bring a malpractice claim. This obviously gives rise to certain challenges for the estate. Even more complex is how the estate would pursue a malpractice claim where, as in Nixon, the decedent died before resolution of the criminal case. This scenario raises various questions, including whether the innocence element would be required of estates and what type of damages would be recoverable given the decedent had not yet been convicted. Could such an action even exist? It will certainly be interesting to see how the Georgia courts land on these issues in the future and we will continue to follow up with any developments.
If you have any questions or would like more information, please contact Sara Brochstein at