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Keywords

tortplaintiffdefendantdamagesattorneyappealmalpracticecriminal lawlegal malpracticedefense attorney
plaintiffdefendantjurisdictiondamagesappealburden of proofmalpracticewillcitizenshiplegal malpracticebeyond a reasonable doubt

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Levine v. Kling, 123 F.3d 580

Facts

Robert Levine was convicted of using interstate commerce to commit murder for hire under 18 U.S.C. § 1958(a). After his conviction was upheld by the Court of Appeals, Levine initiated a malpractice suit against his appellate counsel, Richard Kling, claiming damages based on the alleged incompetence of his defense. The district court dismissed the suit for failure to state a claim under Illinois law, which governs the substantive issues in the case.

Robert Levine was convicted of using interstate commerce to commit murder for hire. 18 U.S.C. § 1958(a). After we upheld his conviction, United States v. Levine, 5 F.3d 1100 (7th Cir.1993), he brought this damages suit for malpractice against Richard Kling, his court-appointed appellate counsel, basing jurisdiction on diversity of citizenship.

Issue

Whether a suit for legal malpractice committed in the defense of a criminal case can be maintained if the plaintiff cannot establish, through a successful collateral attack on the conviction, that he was innocent of the crime charged.

The question presented by the appeal, on which we can find no Illinois case, is whether a suit for legal malpractice committed in the defense of a criminal case will lie if the plaintiff cannot establish (as by a successful collateral attack on the conviction) that he was innocent of the crime with which he was charged.

Rule

Under Illinois law, a criminal defendant must establish their innocence through a successful collateral attack on their conviction to maintain a legal malpractice action against their defense counsel.

Most cases answer 'no,' e.g., Peeler v. Hughes, 909 S.W.2d 494, 497–98 (Tex.1995); Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783, 788 (1990); but see Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058, 1061 (1989), and we expect that the Supreme Court of Illinois if faced with the question would give the same answer.

Analysis

The court applied the rule by examining the relationship between a criminal conviction and the ability to claim damages for legal malpractice. It noted that a successful malpractice claim would require the plaintiff to demonstrate that competent counsel would have secured an acquittal, which is not possible if the defendant is guilty in fact. The court emphasized that allowing such claims would undermine the principles of tort and criminal law, as it would provide relief to individuals who are legally guilty.

Yet because of the heavy burden of proof in a criminal case, an acquittal doesn't mean that the defendant did not commit the crime for which he was tried; all it means is that the government was not able to prove beyond a reasonable doubt that he committed it.

Conclusion

The Court of Appeals affirmed the district court's dismissal of Levine's malpractice suit, concluding that he could not maintain the action without first proving his innocence through a successful postconviction attack on his conviction.

Affirmed.

Who won?

Richard Kling, the appellate defense attorney, prevailed in the case because the court found that Levine could not maintain a malpractice action without first proving his innocence.

The district court dismissed the suit for failure to state a claim under Illinois law, which all agree is the law applicable to the substantive issues in the case.

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