GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RISK OF MALPRACTICE LIABILITY " DEFENDANT CANNOT PREVAIL ABSENT SHOWING FACTUAL INNOCENCE PRECEDED BY POST-CONVICTION EXONERATION
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67 (a plaintiff alleging attorney malpractice against his former criminal defense attorney cannot prevail unless he proves, by a preponderance of the evidence, that he was factually innocent of the charges filed in his criminal case); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1198, 1205 (as a prerequisite for showing actual innocence, the plaintiff must first show that he obtained post-conviction exoneration: "a final disposition of the underlying criminal case--for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief ....").

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RISK OF MALPRACTICE LIABILITY
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67 (a plaintiff alleging attorney malpractice against his former criminal defense attorney cannot prevail unless he proves, by a preponderance of the evidence, that he was factually innocent of the charges filed in his criminal case); Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67.) As Earll M. Pott put it, This burden is in addition to the already difficult task of meeting the elements of attorney malpractice, i.e. (1) the attorneys duty to use the skill, prudence and diligence commonly exercised by attorneys in the field; (2) breach of that duty; (3) proximate cause; (4) and actual loss or injury resulting from the attorneys negligence. This requirement of proof of actual innocence " as a precondition to malpractice liability of a criminal defense attorney " is the rule in a majority of the states. See, e.g., Canaan v. Bartee (2003) 276 Kan. 116, 72 P.3d 911 (listing majority and minority cases). As Potts said: [This rule] is founded on an explicit public policy that bars a criminal from shifting the consequences of his guilt and, in a derivative fashion, profiting from his own wrongdoing. It is also based on the availability of alternative avenues for relief in criminal cases (e.g. reversals based on ineffective assistance), the need to promote consistent judgments in criminal and civil adjudications of the same facts, and perceived difficulties in explaining causation and differing burdens of proof to civil juries if the rule were not in place. Wiley, supra, 19 Cal.4th at pp. 538-543. Finally, since the rule reduces the risk of malpractice claims, it encourages the representation of criminal defendants who, as defense attorneys know too well, are often indigent or of limited means. Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1372. The plaintiff must first obtain post-conviction exoneration, before being allowed to show actual innocence. Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1198, 1205. The California Supreme Court defines post-conviction relief as "a final disposition of the underlying criminal case--for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief...." Id. at p. 1205.

Other

CAL POST CON " RELIEF " RIGHT TO COUNSEL " INEFFECTIVE ASSISTANCE OF COUNSEL " MALPRACTICE " DEFENDANT CANNOT RECOVER FOR MALPRACTICE COMMITTED DURING POST-CONVICTION RELIEF EFFORTS, UNLESS HE CAN SHOW ACTUAL INNOCENCE AND IN FACT OBTAINS POST-CONVICTION RELIEF IN THE UNDERLYING CRIMINAL MATTER
Khodayari v. Mashburn, 200 Cal.App.4th 1184, 132 Cal.Rptr.3d 903 (2d Dist. Nov. 15, 2011) (post-conviction counsel is not liable in tort for malpractice unless (a) the plaintiff can show actual innocence, and (b) the plaintiff obtained post-conviction exoneration of the offense concerning which malpractice liability is sought). The court reasoned: In California, it is extremely difficult for a client to recover for legal malpractice committed during representation seeking post-conviction relief: In his instant civil suit against respondent, he alleged that respondent's deficient representation caused him to be found in violation of probation. As a result, he was incarcerated longer than was necessary, and respondent, without appellant's consent, induced appellant's brother to pay restitution on appellant's behalf, falsely representing that the payment would not be distributed to the victims pending appellant's appeal from his criminal convictions. Appellant seeks damages for emotional distress and lost income resulting from his incarceration, and damages for the restitution paid by his brother, who is now demanding repayment from appellant. The trial court sustained respondent's demurrer to appellant's complaint without leave to amend and dismissed the case. In this appeal by appellant, we conclude that all of appellant's causes of action sound in legal malpractice. We hold that the policy rationale of the actual innocence requirement (Wiley v. County of San Diego (1998) 19 Cal.4th 532 (Wiley); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194 (Coscia) mandates that appellant show actual innocence of the probation violations allegedly resulting from respondent's malpractice, and also obtain post-violation exoneration of those violations. Because appellant did not comply with these requirements, and has not shown that he can, the demurrer was properly sustained without leave to amend. (Khodayari v. Mashburn, 200 Cal.App.4th 1184, 132 Cal.Rptr.3d 903, 904-05 (2d Dist. Nov. 15, 2011).)

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RISK OF MALPRACTICE LIABILITY " DEFENDANT CANNOT PREVAIL ABSENT SHOWING FACTUAL INNOCENCE PRECEDED BY POST-CONVICTION EXONERATION
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67 (a plaintiff alleging attorney malpractice against his former criminal defense attorney cannot prevail unless he proves, by a preponderance of the evidence, that he was factually innocent of the charges filed in his criminal case); Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1198, 1205 (as a prerequisite for showing actual innocence, the plaintiff must first show that he obtained post-conviction exoneration: "a final disposition of the underlying criminal case--for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief ....").

GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RISK OF MALPRACTICE LIABILITY
Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67 (a plaintiff alleging attorney malpractice against his former criminal defense attorney cannot prevail unless he proves, by a preponderance of the evidence, that he was factually innocent of the charges filed in his criminal case); Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67.) As Earll M. Pott put it, This burden is in addition to the already difficult task of meeting the elements of attorney malpractice, i.e. (1) the attorneys duty to use the skill, prudence and diligence commonly exercised by attorneys in the field; (2) breach of that duty; (3) proximate cause; (4) and actual loss or injury resulting from the attorneys negligence. This requirement of proof of actual innocence " as a precondition to malpractice liability of a criminal defense attorney " is the rule in a majority of the states. See, e.g., Canaan v. Bartee (2003) 276 Kan. 116, 72 P.3d 911 (listing majority and minority cases). As Potts said: [This rule] is founded on an explicit public policy that bars a criminal from shifting the consequences of his guilt and, in a derivative fashion, profiting from his own wrongdoing. It is also based on the availability of alternative avenues for relief in criminal cases (e.g. reversals based on ineffective assistance), the need to promote consistent judgments in criminal and civil adjudications of the same facts, and perceived difficulties in explaining causation and differing burdens of proof to civil juries if the rule were not in place. Wiley, supra, 19 Cal.4th at pp. 538-543. Finally, since the rule reduces the risk of malpractice claims, it encourages the representation of criminal defendants who, as defense attorneys know too well, are often indigent or of limited means. Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1372. The plaintiff must first obtain post-conviction exoneration, before being allowed to show actual innocence. Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1198, 1205. The California Supreme Court defines post-conviction relief as "a final disposition of the underlying criminal case--for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief...." Id. at p. 1205.