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Keywords

lawsuitdamagesattorneylawyernegligenceappealtrialmalpracticemisdemeanorlegal malpractice

plaintifflawyerappealmalpracticelegal malpractice

Related Cases

Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368

Facts

Rosie Rodriguez filed a lawsuit against her attorney, Jess C. Nielsen, claiming that his representation in a misdemeanor criminal case was negligent and resulted in damages. Initially, Rodriguez and her husband filed suit, but after a demurrer from Nielsen, Rodriguez amended her petition to focus solely on Nielsen's alleged negligence. The trial court dismissed her amended petition, stating it did not properly allege causation, particularly her innocence regarding the underlying crime.

Rodriguez' amended petition does not allege her innocence of the crimes for which she was convicted, nor does it allege facts which would even raise the issue of her innocence.

Issue

What are the required allegations to state a cause of action for legal malpractice by a convicted criminal against his or her criminal defense lawyer?

This appeal presents the question, What are the required allegations to state a cause of action for legal malpractice by a convicted criminal against his or her criminal defense lawyer?

Rule

A convicted criminal who files a legal malpractice claim against his or her defense counsel must allege and prove that he or she is innocent of the underlying crime.

Analysis

The court determined that Rodriguez's amended petition failed to state a cause of action because it did not include any allegations of her innocence regarding the crimes for which she was convicted. The court emphasized that without such an allegation, it could not be established that Nielsen's alleged negligence was the proximate cause of any damages suffered by Rodriguez. The court also noted that public policy considerations necessitate requiring proof of innocence in such malpractice claims.

We therefore hold that a convicted criminal who files a legal malpractice claim must allege and prove that he or she is innocent of the underlying crime with which the plaintiff was charged.

Conclusion

The Supreme Court reversed the trial court's decision and remanded the case, allowing Rodriguez the opportunity to amend her petition to include the necessary allegations of innocence.

We conclude that Rodriguez' amended petition failed to state a cause of action.

Who won?

Rodriguez prevailed in the appeal because the Supreme Court found that she should have the opportunity to amend her petition to include allegations of innocence, which are essential to her claim.

Rodriguez should be given leave to amend her petition.

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