The criminally accused are entitled to capable lawyering without regard to their guilt or innocence, for only by the competent representation of all criminally accused can society rest assured that the innocent are not unfairly criminalized.[1]

I. Introduction

For over two decades, the Peeler doctrine has kept nonexonerated convicts from recovering for legal malpractice claims.[200] Originally, its scope was narrow.[200] Its primary justification was to keep criminals from profiting from their crimes.[200] But over the years, courts have expanded the doctrine, allowing criminal defense attorneys to use it as a shield when they fail to meet their contractual obligations to clients.[200] Today, application of the doctrine frequently undermines public policy objectives and makes it harder for plaintiffs with legitimate claims to succeed in court.[200]

This Comment is meant to provide attorneys and policymakers the tools they need to roll back the overextension of this doctrine, thus providing convicts a more equitable opportunity to pursue legal malpractice claims.[200] Part II sets Peeler in context by describing the doctrine’s evolution, some of its criticisms, and corresponding rules in other states. Part III considers ways to better advance the public policy concerns implicated by Peeler.

II. The Peeler Doctrine

A. Peeler v. Hughes & Luce

Carol Peeler came under IRS investigation for forging illegal tax write-offs for wealthy investors.[200] Before she was convicted, she signed a plea deal with federal prosecutors in exchange for a lighter sentence for herself and dropped charges against her husband.[200] Three days after pleading guilty, a journalist allegedly informed Peeler that the government had offered her transactional immunity in exchange for further cooperation with the investigation.[200] Her attorney had not disclosed this offer to her before she signed the plea agreement, and the offer would have let her go free so long as she agreed to testify against her colleagues.[200] Peeler sued the attorney and his firm, claiming that this omission violated the Texas Deceptive Trade Practices Act and constituted legal malpractice, breach of contract, and breach of warranty.[200] But the Texas Supreme Court denied her claims, holding that convicts must be exonerated before bringing suit for legal malpractice.[200]

To reach this decision, the court held that one’s criminal conduct is “the sole proximate cause” of one’s conviction as a matter of law.[200] The court also observed that a majority of state courts had already adopted this rule[200] and determined that four public policy concerns compelled this result[200]:

  • prohibiting convicts from profiting indirectly from their illegal acts;[200]

  • prohibiting convicts from shifting the costs and consequences of their crimes to the attorneys who represent them;[200]

  • prohibiting convicts from diminishing the consequences of criminal activity;[200] and

  • prohibiting convicts from pursuing legal remedies that would undermine the criminal justice system.[200]

The court concluded that to allow Peeler to sue the attorneys who represented her would mean allowing her a chance to profit financially from the criminal activity she pled guilty to.[200] On balance, the court found that this injustice outweighed the countervailing need to “hold[] defense attorneys responsible for their professional negligence . . . .”[200]

B. Criticism of Peeler

Peeler has been criticized since its inception.[200] Dissenting from the plurality, Chief Justice Phillips argued that Peeler’s exoneration requirement imposed an “extraordinary burden” on criminal defendants and would undermine the claims of those who would not have been convicted but for their attorney’s negligence.[200] Concurring in Owens v. Harmon, Justice Grant from the Sixth Court of Appeals observed that, under Peeler, “[i]f a criminal lawyer can bungle a case sufficiently so that his client will never get out of prison, then the attorney can never be responsible for malpractice.”[200] “With no threat of sanction,” another commentator wrote, “there may be no need . . . not to breach the duty of care owed to one’s clients.”[200] Some have accordingly called the Peeler doctrine “the incompetent criminal lawyer defense act”[200] or a “lawyer’s holiday.”[200]

Addressing the exoneration rule and its corollaries in other states, Professor Vincent Johnson has written that “these obstacles to recovery . . . are simply doctrinal overkill.”[200] As he explains, they merely add to the hurdles that a malpractice claim must overcome to be successful:

The difficulty of finding an attorney to initiate a malpractice action, the nature of the jury system, the demanding requirements of the “trial within a trial” causation analysis, and the rules that protect a lawyer’s exercise of discretion, all conspire to defeat a malpractice claim raised by one charged with or convicted of a crime.[200]

The extra hurdles for criminal defense legal malpractice claims may explain why, in some jurisdictions, they are brought less frequently than malpractice claims against civil defense attorneys and why the success rates and payouts are lower.[200]

As Kevin Bennardo who now teaches at the University of North Carolina School of Law notes, courts tend to justify the exoneration rule because it (1) conserves judicial resources, (2) avoids inconsistent judgments, (3) sidesteps having to consider whether the convict or the defense attorney was responsible for the conviction, and (4) enforces rules that further penalize criminal acts.[200] In response, Bennardo argues that individual rights and justice are more important than cost savings.[200] He also notes that many judicial proceedings can lead to inconsistent judgments—wrongful death suits and murder prosecutions, for example—meaning that this risk is not unique.[200] Addressing the difficulty of proving whether the convict or the attorney caused the conviction, Bennardo explains that requiring post-conviction relief under the exoneration rule does not avoid these causation challenges.[200] For instance, if the criminal defendant achieved post-conviction relief through an ineffective-assistance-of-counsel claim, that judgment would say nothing about whether the defendant committed the crime.[200] Bennardo contends that those wrongfully convicted deserve “compensat[ion] for the wrongful conviction itself, the time wrongly spent in prison, and the cost of seeking post-conviction relief.”[200] He concludes that the Peeler doctrine ultimately “allows the lawyer to escape responsibility for her wrongful conduct and [to] shift[] the burden of the malpractice onto her client.”[200]

C. The Peeler Doctrine’s Evolution Post-1995 [200]

Peeler has evolved in two ways. First, courts have applied it to bar a wider variety of claims than it originally addressed.[200] Second, courts have applied it to protect a wider variety of individuals than it originally protected.[200] Recently, however, one court refused to apply the doctrine, possibly signaling a new phase in Peeler’s evolution.[200]

1. Peeler bars more claims. In Peeler, the Texas Supreme Court held that the exoneration rule barred the first four of the following claims. State appellate courts have held that Peeler bars the remaining claims as well,[200] though they have observed that the Texas Supreme Court has yet to apply the doctrine so expansively[200]:

  • violations of the Deceptive Trade Practices Act;[200]

  • legal malpractice;

  • breach of contract;

  • breach of warranty;[200]

  • breach of fiduciary duty;[200]

  • civil fraud;[200]

  • negligent misrepresentation;[200] and

  • fee forfeiture.[200]

2. Peeler shields nonattorneys. In Falby v. Percely, a convict’s mother hired an unlicensed law graduate named William Satterwhite to compose a writ of habeas corpus on behalf of her son.[200] Satterwhite visited the convict once but never produced the writ, and the federal deadline came and went.[200] The convict sued Satterwhite and argued that Peeler did not apply because Satterwhite did not represent him at trial.[200] But the Ninth District Court of Appeals in Beaumont disagreed, holding that Peeler barred the convict’s claims because “[t]he habeas corpus application, regardless of who filed it, relates to and flows from the conviction.”[200] Thus, this appellate court extended Peeler to claims against unlicensed legal assistants who were not involved with the convict’s original conviction proceedings. Unlike the Beaumont Court of Appeals, however, courts in several other states have held that their interpretations of the Peeler doctrine do not protect those hired after the plaintiff’s original conviction.[200]

Similar to Falby, Houston’s Fourteenth District Court of Appeals held in Golden v. McNeal that Peeler barred claims against a court-appointed investigator named Shirley Johnson.[200] Johnson was hired to assist with the convict’s defense, but the convict sued him along with his court-appointed attorney after he was sentenced to forty years for possession of a controlled substance.[200] The trial court granted the investigator’s summary judgment motion, and the appellate court affirmed.[200] Relying on Peeler, the appellate court stated that “[c]onvicts may not shift the consequences of their crime to a third party” and said this “language . . . is certainly broad enough to encompass claims of negligence or malpractice on the part of nonattorneys.”[200]

3. Peeler now has a limit—at least in the eyes of one court. Gonyea v. Scott offers a rare example of a Texas appellate court asserting a limit on Peeler’s application.[200] In Gonyea, the First District Court of Appeals held that the exoneration rule does not apply when a convict contracts with an attorney for legal services that the attorney does has yet to provide.[200] Going forward, this rule would require criminal defense attorneys to prove that they performed at least some work on the client’s behalf in order for Peeler to bar the claims asserted against them.[200]

The Gonyea case concerned Orian Scott, who hired attorney William Gonyea to investigate and file a writ of habeas corpus regarding several of Scott’s convictions.[200] By accident, Scott overpaid Gonyea, but the attorney never returned the extra money.[200] Nor did Gonyea file the writ of habeas corpus.[200] The attorney claimed that he met with Scott once and performed initial research, but the trial court found that he never conducted an investigation, outlined the issues to address in the writ, or composed a draft of the petition.[200] Consequently, the trial court ruled against Gonyea, awarding Scott $25,000 for the legal representation he never received, $15,000 for theft damages, and $76,800 for attorney’s fees.[200] On appeal, Gonyea contended that Peeler barred Scott’s breach-of-contract claim and that the statute of limitations barred Scott’s theft claim.[200]

The appellate court held that Peeler did not bar Scott’s breach-of-contract claim for four reasons.[200] First, Scott’s complaint was “not that the legal services he received fell below a . . . standard of care or contributed to his conviction, but that, instead, he received no representation.”[200] Second, a decision in the attorney’s favor would advance none of the policy justifications that Peeler first identified[200]—after all, the suit would not profit Scott financially because he only sought a return of the cash he paid for services never received.[200] Third, deciding in favor of the attorney “might create a disincentive to diligent representation of criminal defendants.”[200] Fourth, “requiring some evidence of active representation to invoke Peeler defensively recognizes that the constitutional right to assistance of counsel is foundational to our criminal-justice system.”[200]

Whether Gonyea v. Scott marks a new trend in Texas jurisprudence remains to be seen. But the Gonyea court’s requirement that defense attorneys present “some evidence of active representation to invoke Peeler” sets a reasonable boundary around the Peeler doctrine.[200] It imposes some accountability on criminal defense attorneys without allowing criminals to profit from their crimes or reduce the consequences of their actions. Furthermore, it enhances the criminal justice system by encouraging criminal defense attorneys to fulfill their contractual obligations to criminal defendants.

D. Corresponding Rules in Other Jurisdictions

Peeler requires plaintiffs in Texas, who pursue criminal legal malpractice claims, to show evidence of “exonerat[ion] by direct appeal, post-conviction relief, or otherwise” before suing their attorneys.[200] This is known as a “legal innocence” requirement[200] and is one of eleven approaches for a standard of criminal malpractice claims adopted by different states.[200] These approaches are listed below, roughly organized on a scale of least to most stringent. The Peeler doctrine is an example of the sixth approach.

1. Equivalent civil and criminal malpractice standards. Some states have the same requirements for convicted and unconvicted plaintiffs to sue their attorneys.[200] Both must prove duty, breach, causation, and damages.[200] These states include Arkansas,[200] Colorado,[200] Delaware,[200] Indiana,[200] Louisiana,[200] Michigan,[200] Montana,[200] New Mexico,[200] North Dakota,[200] Ohio,[200] and Utah.[200]

2. Higher proximate cause standard in criminal defense malpractice actions. North Carolina justifies this rule on the basis that (1) the criminal justice system already provides special protections for criminal defendants, (2) the guilty should not profit from their crimes, and (3) the supply of criminal defense attorneys should be protected.[200]

3. Legally cognizable injury. Some states and the District of Columbia require that the plaintiff either show that (1) he or she would not have been convicted but for the attorney’s negligence or (2) the attorney caused a different legally cognizable harm. These include Alabama,[200] District of Columbia,[200] Georgia,[200] Nebraska,[200] and Rhode Island.[200]

4. Actual innocence. Some states do not require post-conviction relief as a prerequisite to bringing suit but do require the plaintiff to prove by a preponderance of the evidence that he or she was innocent of the crime charged.[200] These include Illinois,[200] Kentucky,[200] Massachusetts,[200] Missouri,[200] New York,[200] Oklahoma,[200] South Carolina,[200] and Wisconsin.[200]

5. Legal innocence with actual guilt as an affirmative defense. Alaska requires post-conviction relief as a prerequisite to bringing a malpractice suit. But the state also allows criminal defense attorneys to raise the former client’s actual guilt as an affirmative defense established by a preponderance of the evidence.[200]

6. Legal innocence or exoneration. Many states require that convicts establish legal innocence via proof of exoneration or other post-conviction relief before suing their criminal defense attorneys for malpractice.[200] These states include Arizona,[200] California,[200] Idaho,[200] Iowa,[200] Kansas,[200] Maryland,[200] Minnesota,[200] Mississippi,[200] New Jersey,[200] Tennessee,[200] and Texas.[200]

7. Different standards for suing trial and post-conviction counsel. The Oregon Supreme Court requires that a plaintiff, who sues their trial counsel, allege harm by showing that the plaintiff “has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.”[200] In contrast, to sue post-conviction counsel, “prior exoneration, by means of appeal, post-conviction proceedings, or otherwise, is not a prerequisite . . . .”[200]

8. Post-conviction relief plus proof that the attorney acted recklessly or in wanton disregard for the plaintiff’s interest. Pennsylvania has this requirement.[200]

9. Actual innocence plus legal innocence. Some states require both. These include Florida,[200] Nevada,[200] New Hampshire,[200] Virginia,[200] and Washington.[200]

10. Innocence of both the charge and lesser offenses. West Virginia requires that plaintiffs prove by a preponderance of the evidence not only that they were innocent of the crime for which they were convicted but also that they were innocent of the lesser charges brought against them.[200]

11. No legal malpractice suits against protected groups. Under Delaware’s qualified immunity laws, plaintiffs may not sue public defenders and court-appointed attorneys without first overcoming the state presumption of qualified immunity.[200] Minnesota and Nevada do not allow suits against public defenders.[200] Nevada does not allow suits against court-appointed, private defense attorneys.[200]

12. Undecided. Connecticut,[200] Hawaii,[200] Maine,[200] South Dakota,[200] Vermont,[200] and Wyoming[200] have yet to hear criminal legal malpractice claims at the appellate level and decide what standard to apply.

E. Exonerations in Texas

If exonerations never occurred in Texas, legal malpractice suits under Peeler would be uniformly dismissed.[200] But in the last few years, the Texas legislature has passed several laws meant to protect against wrongful convictions.[200] For example, a May 2017 bill implemented tougher regulations on the use of jailhouse informants in prosecutions, special requirements for audio recorded interrogations in some felony cases, and tighter procedures for eyewitness identifications in police lineups.[200] As a result of these and other efforts, Texas leads the nation in total exonerations[200]—a fact that has been increasingly important since Peeler’s pronouncement in 1995. With at least 40,000 annual convictions, however, the chances of exoneration remain slim.[200]

III. Strategies for Reigning in the Peeler Doctrine

Peeler warned that “[n]othing in [the] opinion should be construed as relieving criminal defense attorneys of their responsibility to maintain the highest standards of ethical and professional conduct.”[200] But some attorneys have used Peeler to do just that.[200] Many states do not have exoneration or actual innocence requirements,[200] and some scholars have vigorously criticized the rule,[200] which suggests that modifying, removing, or replacing it would be justified. Before considering alternatives to the doctrine, however, it is important to understand the public policy interests at issue so that lawmakers, judges, and others can more easily evaluate alternatives to the exoneration rule that might lead to a more just and fair system in Texas and elsewhere.

A. Competing Public Policies

The four public policies that Peeler’s plurality considered persuasive[200] are only a few among the many raised by courts and scholars addressing criminal legal malpractice claims:

  • ensuring Sixth Amendment protections for criminal defendants by maintaining representation standards;[200]

  • seeking equitable representation for all—including alleged lawbreakers;[200]

  • treating attorneys equally instead of providing special protections to criminal attorneys;[200]

  • denying criminals the opportunity to profit financially from their crimes;[200]

  • preventing criminals from shifting responsibility for their crimes to third parties;[200]

  • maintaining severe consequences for criminal activity;[200]

  • advancing the war on crime;[200]

  • protecting the credibility of the justice system;[200]

  • holding criminal defense attorneys responsible for their negligence;[200]

  • protecting future plaintiffs from bad lawyers;[200]

  • providing attorneys the freedom to do what is best for their clients instead of incentivizing the satisfaction of every client request;[200]

  • avoiding an influx of criminal legal malpractice cases that might overburden courts;[200]

  • avoiding circumstances that might discourage criminal defense attorneys from accepting new clients;[200] and

  • avoiding redundancy in a system already safeguarded by protections against mistaken convictions.[200]

B. Alternatives to the Status Quo

Seven alternatives to the Peeler doctrine are considered below.

1. Equal standards for convicted and unconvicted plaintiffs. Eleven states have rejected special requirements for legal malpractice claims brought by convicts.[200] This approach arguably (1) protects individual rights by placing criminal defendants on a more level playing field when asserting legal malpractice claims;[200] (2) sees criminal defendants as innocent until proven guilty;[200] (3) prohibits criminal defense attorneys from shifting the costs or responsibility for their mistakes onto criminal defendants;[200] (4) allows criminal defendants to seek refunds when their attorneys do not do what they promised;[200] (5) helps protect future criminal defendants from negligent attorneys;[200] (6) helps ensure adequate criminal defense counsel for all under the Constitution; [200] (7) places criminal defense attorneys on an equal playing field with other attorneys subject to the traditional standard;[200] and (8) avoids other shortcomings of the exoneration rule previously addressed.[200]

On the other hand, some might be concerned that this approach would (1) allow criminals a financial return made possible by their crimes,[200] (2) shift responsibility for the crimes to their defense counsel,[200] (3) increase caseloads, [200] (4) discourage criminal defense attorneys from taking on new clients, and (5) encourage defense attorneys to do “what makes [their] client[s] happy” instead of what best serves their interests.[200] But not all of these concerns are valid.

Though convicted plaintiffs who prevail against their attorneys in malpractice suits may receive payment, that payment will only serve to offset the additional jail time, fines, and other harms that their attorney’s acts or omissions brought upon them.[200] Regarding the potential for responsibility-shifting, this risk cuts both ways. Removing the exoneration rule might force some attorneys to lose revenue made possible by their client’s crimes, but the current rule forces convicts to bear the financial and other consequences of their attorneys’ negligence.[200] Addressing the caseload concern, it is likely that more convicts would bring criminal defense legal malpractice actions if the standard were lower.[200] But the current system arguably incentivizes convicts to pursue every form of post-conviction relief imaginable if they believe their attorney made a mistake, even if the evidence against them is strong. While a lower standard might encourage criminal defense attorneys to be more cautious about accepting new clients, this would not be anathema in a profession with high standards of professional conduct.[200] Every attorney must weigh the risks of taking on a new client, and the potential for a malpractice claim serves to encourage attorneys to do what other reasonable attorneys would do for their clients. Furthermore, it is unclear whether imposing higher standards would noticeably affect the number of criminal defense attorneys practicing in the state.[200] But if Texas and other states with exoneration rules are concerned about ensuring the supply of criminal defense attorneys, they could temper a more relaxed standard with special protections for public defenders and court-appointed defense attorneys, as some other states have done.[200]

2. Follow Gonyea by refusing to rule in favor of criminal defense attorneys when doing so would not align with Peeler’s public policy objectives. This approach would allow convicts to pursue claims that could not result in financial gain, shift responsibility for their criminal activity to someone else, reduce the consequences of their crimes, or otherwise undermine the justice system.[200] Though this option would arguably be an improvement, it would not fully address the fundamental problems posed by the exoneration and actual innocence requirements.[200]

3. Provide alternative remedies that discipline attorneys without allowing criminals to receive financial gain. Peeler was decided under the assumption that successful plaintiffs in malpractice actions would receive a financial recovery.[200] Courts might consider different equitable remedies to avoid allowing criminals financial gain but still allow suits that discourage poor performance, such as the following:

  • allow convicts to recover what they paid for the deficient representation;[200]

  • allow modest reductions in convicts’ sentences based on what effect courts believe the attorney’s subpar performance had;[200]

  • force negligent attorneys to pay a fine to an organization that seeks to overturn wrongful convictions or to a fund that sponsors criminal defense for the indigent;

  • temporarily or permanently suspend an attorney’s bar license; or

  • impose a system of comparative responsibility to reduce the plaintiff’s recovery in a malpractice suit.[200]

Remedies like these could discourage attorney wrongdoing—thereby protecting future clients while reducing the chance that criminals might profit from their crimes.

4. Allow convicts special exceptions if, through their attorneys’ negligence, they miss a deadline. This could provide targeted relief for plaintiffs who prove that their attorneys were solely responsible for missing a deadline to file an important document.[200]

5. Different standards for suing trial and post-trial counsel. Many safeguards exist to protect criminal defendants from faulty convictions.[200] Because these safeguards could protect criminal defendants from the consequences of poor defense counsel performance at trial, the ability to sue post-conviction counsel is arguably more pressing.[200] For this reason, some states have different rules for suing post-conviction counsel. Oregon, for example, allows convicts to sue their attorneys who were not involved in their original conviction proceedings without special prerequisites like proof of exoneration.[200]

6. Require proof of a legally cognizable injury. Some states have adopted a rule similar to the legally cognizable injury rule.[200] According to this rule, as described in the Restatement (Third) of the Law Governing Lawyers, “[a] convicted criminal defendant suing for malpractice must prove both that the lawyer failed to act properly and that, but for that failure, the result would have been different . . . .”[200] The rule is less stringent than the exoneration rule because it does not require legal innocence. And it would help hold attorneys responsible for their negligence while providing compensation for the harm their negligence caused.[200]

7. Leave Peeler alone and allow the state bar to penalize negligent criminal defense attorneys. According to the Texas State Bar, the number of attorneys disciplined in all practice areas is marginal at best. During the 2014–2015 bar year, Texas had 86,494 active in-state attorneys.[200] During that time, Texas’s Office of Chief Disciplinary Counsel issued only 7 disbarments and sanctions in 318 cases.[200] This means, at most, 0.37% of in-state Texas attorneys received a reprimand, and less than 1 in 10,000 were disbarred.[200] Unless changes are made to the Texas State Bar’s disciplinary system, these numbers indicate that the state bar is inadequate to protect plaintiffs from bad attorneys.[200]

C. Methods for Reigning in the Exoneration Rule

The Texas legislature could replace the doctrine. Alternatively, the Texas Supreme Court should have little difficulty restricting the doctrine or replacing it with something else—especially considering that Peeler’s holding was reached by a mere plurality. The court might justify its decision based on Peeler’s unintended consequences, Texas intermediate appellate courts’ recent expansion of the doctrine, or reasoning from other jurisdictions that have considered and rejected the exoneration rule. Texans could also consider an amendment to the state constitution, though this would require more votes than ordinary legislation.[200]

IV. Conclusion

To correct Peeler’s misapplication and avoid the fundamental problems with the exoneration rule, Texas courts and lawmakers should consider adopting a different rule that better protects individual rights and ensures that the protections of the civil system are available to hold criminal defense attorneys accountable for their actions.[200] Several alternatives to the present system would advance worthy policy goals and ameliorate the effects of the Peeler doctrine, but removing the exoneration rule entirely would provide the most equitable, straightforward path forward.[200]

Nicholas Van Cleve: J.D. Candidate at the University of Houston Law Center. The Author would like to thank the editors of the Houston Law Review for their assistance; Professor David Kwok for his guidance, and his wife, Brenna, and son, Alistair, as well as his parents for their love and support.

V. Appendix: Every State’s Approach to Criminal Defense Legal Malpractice Claims

The chart below provides a concise overview of the rule in all fifty states and the District of Colombia on criminal defense legal malpractice claims.


  1. Meredith J. Duncan, Criminal Malpractice: A Lawyer’s Holiday, 37 Ga. L. Rev. 1251, 1305 (2003).

  2. See John G. Browning & Lindsey Rames, Proof of Exoneration in Legal Malpractice Cases: The Peeler Doctrine and Its Limits in Texas and Beyond, 5 St. Mary’s J. on Legal Malpractice & Ethics 50, 65–66 (2014).

  3. See id. at 62 (“Since Peeler, courts have continued to extend the criminal malpractice bar to all phases of criminal prosecutions—from pre-trial investigations to appeal and even to parole. As a result, criminal defense attorneys have enjoyed a blanket of protection not afforded to other lawyers in the State of Texas.”).

  4. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497 (Tex. 1995) (plurality opinion) (quoting State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. Ct. App. 1985)).

  5. E.g., Shepherd v. Mitchell, No. 05-14-01235-CV, 2016 WL 2753914, at *1–2 (Tex. App.—Dallas May 10, 2016, pet. dism’d w.o.j.) (mem. op.) (barring a claim against an attorney who did not represent the plaintiff at trial but failed to file a writ of habeas corpus on his behalf—work the plaintiff’s family paid him $10,000 to perform); Falby v. Percely, No. 09-04-422 CV, 2005 WL 1038776, at *2–3 (Tex. App.—Beaumont May 5, 2005, no pet.) (mem. op.) (affirming summary judgment barring a claim against an attorney who did not represent the plaintiff at trial but was hired to submit a writ of habeas corpus on his behalf—something he did not do). Peeler has been cited over 200 times in Texas and by courts in at least twenty-four other states.

  6. See Gonyea v. Scott, 541 S.W.3d 238, 247–48 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (outlining Peeler’s four public policy concerns and noting that none would be advanced by applying the doctrine to shield the attorney from responsibility in that case); infra Section III.A (listing competing public policies that exoneration rules and other approaches advance or undermine). Data on legal malpractice claims is limited, but anecdotally speaking, data from Missouri indicates that criminal defense malpractice claims succeed less than 10% of the time. See Herbert M. Kritzer & Neil Vidmar, When the Lawyer Screws Up: A Portrait of Legal Malpractice Claims & Their Resolution, Duke L. Sch. Pub. L. & Legal Theory Series, June 29, 2015, at 1, 37, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6182&context=faculty_scholarship [https://perma.cc/DM7X-ULQX].

  7. U.S. Const. amend. VI (setting out rights related to criminal prosecutions); see Mashaney v. Bd. of Indigents’ Def. Servs., 355 P.3d 667, 686–87 (Kan. 2015) (quoting Mashaney v. Bd. of Indigents’ Def. Servs., 313 P.3d 64, 89 (Kan. Ct. App. 2013) (Atcheson, J., dissenting) (“Criminal defendants regardless of guilt or innocence have a right to competent legal representation.”), aff’d in part and rev’d in part, 355 P.3d 667 (Kan. 2015)). States that have yet to adopt an approach to these types of cases—including Connecticut, Hawaii, Maine, South Dakota, Vermont, and Wyoming—will need to undertake a similar analysis. See infra Section II.D.12; see also infra Appendix.

  8. Peeler, 909 S.W.2d at 495–96.

  9. Id. at 496.

  10. Id. “Transactional immunity” refers to a witness’s protection from government prosecution over anything the witness testifies about. See 32 C.F.R. § 719.112 (2018).

  11. Peeler, 909 S.W.2d at 496 (“In other words, the United States Attorney had offered to not prosecute Peeler for her crime, if she would become a witness and testify against her colleagues.”).

  12. Id.

  13. Id. at 497–98, 500.

  14. Id. at 497–98. Proximate cause is one of four elements of legal malpractice claims; namely, duty, breach, causation, and damages. Id. at 496.

  15. Id. at 497–98 (citing illustratively cases applying this rule in Illinois, Florida, Alaska, California, Massachusetts, Nevada, New York, Pennsylvania, and Oregon); see Kevin Bennardo, Note, A Defense Bar: The “Proof of Innocence” Requirement in Criminal Malpractice Claims, 5 Ohio St. J. Crim. L. 341, 342 & n.3 (2007) (reporting that a majority of jurisdictions require proof that the plaintiff has secured “post-conviction relief, . . . actual innocence, or both . . . .”); Duncan, supra note 1, at 1266 & n.96 (listing cases in different states following a similar rule). Historically speaking, this doctrine is relatively new. A Colorado Supreme Court decision attributes the post-conviction relief requirement’s origin to a 1974 law review article, and states began adopting it in the 1980s. See Browning & Rames, supra note 2, at 57–58, 58 n.20 (citing, among others, Rantz v. Kaufman, 109 P.3d 132, 135 (Colo. 2005) (en banc)).

  16. Peeler, 909 S.W.2d at 497–98; see Gonyea v. Scott, 541 S.W.3d 238, 247–48 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (outlining Peeler’s four public policy concerns).

  17. Peeler, 909 S.W.2d at 497 (quoting State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. Ct. App. 1985)).

  18. Peeler, 909 S.W.2d at 498.

  19. Id.

  20. Id.

  21. See id. at 497–98.

  22. Id. at 497–98, 500.

  23. See Browning & Rames, supra note 2, at 56 (listing sources of criticism).

  24. Peeler, 909 S.W.2d at 500–01 (Phillips, J., dissenting). “The public morality is thus protected,” he wrote, “at the expense of shielding all criminal defense attorney malpractice, no matter how egregious, from any redress in the civil justice system.” Id. at 500.

  25. See Browning & Rames, supra note 2, at 56 (quoting Owens v. Harmon, 28 S.W.3d 177, 179 (Tex. App.—Texarkana 2000, pet. denied) (Grant, J., concurring)).

  26. See Duncan, supra note 1, at 1269–70.

  27. Owens, 28 S.W.3d at 179.

  28. Bailey v. Tucker, 621 A.2d 108, 124 (Pa. 1993); Duncan, supra note 1, at 1251, 1306 (“It is holiday time for criminal defense attorneys, a time during which criminal defense lawyers are exempt from the usual responsibility of their jobs, namely their professional obligation to provide competent legal representation.”).

  29. Vincent R. Johnson, Legal Malpractice Law in a Nutshell 297 (2d ed. 2016).

  30. Id.

  31. See Kritzer & Vidmar, supra note 6, at 16–19, 25, 37, 45, 50 (listing the frequency of malpractice claims across practice areas and providing more targeted information on Florida and Missouri based on uniquely available insurance claim documentation). That said, the overall success rate of legal malpractice claims has risen since the late 1990s. See Legal Malpractice Claims Costing More, Settling Sooner, Research Shows, Morgan & Morgan Bus. Trial Group (Oct. 27, 2016), 
    https://www.businesstrialgroup.com/news/legal-malpractice-claims-costing-more-settling-sooner-research-shows/ [https://perma.cc/Q3BW-JBXL] (citing a more recent ABA study that found “[c]laims that ended with no payout to malpractice claimants decreased from almost 60 percent in 2011 to 43 percent in 2015”); Smart Money, 10 Things Your Lawyer Won’t Tell You, Fox News (Aug. 29, 2005), http://www.foxnews.com/story/2005/08/29/10-things-your-lawyer-wont-tell.html [https://perma.cc/7R5P-7JMU] (according to a 2001 ABA survey, “[s]ome 68% of malpractice claims from 1996 through 1999 closed without the client receiving payment from the lawyer’s insurance company. . . .”).

  32. See Bennardo, supra note 15, at 345–56 (citing cases in support of each category). At the time this piece was published, Professor Bennardo was a law clerk and recent graduate of the Ohio State University.

  33. Id. at 347.

  34. Id. at 347–48. He also argues that reversed convictions, which are necessary for criminal malpractice claims, can undermine the public’s view of the justice system at least as much as apparently inconsistent judgments in the criminal and civil arenas. Id. at 348.

  35. Id. at 352–53.

  36. Id. at 353.

  37. Id. at 355, 362 (“Criminals can be harmed just as innocent people can be harmed, and criminals should be compensated for their harms just as innocent people are compensated.”).

  38. Id. at 362. Professor Meredith Duncan from the University of Houston Law Center has identified additional shortcomings of the exoneration rule. See Duncan, supra note 1, at 1268–70 (critiquing both the exoneration and actual innocence rules).

  39. For a more in-depth review of particular cases applying the Peeler doctrine, see Browning & Rames, supra note 2, at 66–125.

  40. See infra Section II.C.1.

  41. See infra Section II.C.2.

  42. Gonyea v. Scott, 541 S.W.3d 238, 247–48 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see infra Section II.C.3.

  43. E.g., Westmoreland v. Turner, No. 07-12-0018-CV, 2012 WL 4867574, at *2 (Tex. App.—Amarillo Oct. 15, 2012, pet. denied) (per curiam) (mem. op.) (citations omitted) (“Whether allegations labeled as breach of fiduciary duty, fraud, or some other cause are actually claims for professional negligence is a question of law. As long as the crux of the complaint is inadequate legal representation, it is a claim for legal malpractice.”); see Browning & Rames, supra note 2, at 65–87 (providing a detailed overview of Texas cases applying and expanding Peeler).

  44. Gonyea, 541 S.W.3d at 245 (citation omitted) (“The Texas Supreme Court has not expanded the rule beyond the malpractice context. But intermediate appellate courts have.”); Futch v. Baker Botts, LLP, 435 S.W.3d 383, 391 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Since the Peeler case, the Supreme Court of Texas has not granted review in a case involving this doctrine. Nonetheless, in a series of opinions, this court has adopted and applied an expansive interpretation of the doctrine articulated in the plurality opinion in Peeler.”); Wooley v. Schaffer, 447 S.W.3d 71, 77 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

  45. See generally David J. Beck, Legal Malpractice in Texas: Second Edition, 50 Baylor L. Rev. 547, 761–73 (1998) (providing more details on these claims).

  46. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496–98 (Tex. 1995) (plurality opinion).

  47. See, e.g., Westmoreland, 2012 WL 4867574, at *1–2.

  48. See Dugger v. Arredondo, 408 S.W.3d 825, 833 (Tex. 2013) (“While some courts of appeals have extended [Peeler’s] reasoning to civil defendants bringing legal malpractice actions, we have not directly addressed that issue.”); see, e.g., Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *4–5 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.) (holding that the plaintiff’s fraud claim was subsumed by his legal malpractice claim and thus barred by Peeler).

  49. See Garcia v. Garcia, No. 04-09-00207-CV, 2010 WL 307880, at *1–3 (Tex. App.—San Antonio Jan. 27, 2010, no pet.) (mem. op.) (holding that the plaintiff did not satisfy the Peeler doctrine’s requirements for establishing a claim of negligent misrepresentation because the plaintiff failed to show that she was free from all fault); Johnson v. Odom, 949 S.W.2d 392, 393–94 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (finding that Peeler’s holding barring convicts from suing their attorneys for malpractice similarly barred the appellant’s negligent misrepresentation claim against his defense counsel).

  50. Futch v. Baker Botts, LLP, 435 S.W.3d 383, 392 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

  51. Falby v. Percely, No. 09-04-422 CV, 2005 WL 1038776, at *1 (Tex. App.—Beaumont May 5, 2005, no pet.) (mem. op.).

  52. Id.

  53. Id. at *1–2.

  54. Id. at *2–3. Meullion v. Gladden addressed a similar circumstance in which an inmate claimed that his attorney never filed the writ of habeas corpus after the inmate’s mother paid the attorney $10,000 to do so. No. 14-10-01143-CV, 2011 WL 5926676, at *1 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). The court adopted Falby’s reasoning and held that the Peeler doctrine barred the inmate’s claims even though the defendant did not represent him at trial. Id. at *3–4. But the court also said that a convict might bring a breach of fiduciary duty or fraud claim against his or her attorney should the convict successfully differentiate those claims from a legal malpractice claim. See id. at *4; see also Browning & Rames, supra note 2, at 96–97 (providing additional commentary on Meullion). Several other cases have similarly applied Peeler to bar claims against attorneys who did not represent the defendant at trial. E.g., Shepherd v. Mitchell, No. 05-14-01235-CV, 2016 WL 2753914, at *1–2 (Tex. App.—Dallas May 10, 2016, pet. dism’d w.o.j.) (mem. op.); Rhodes v. George L. Preston & Assocs., No. 06-14-00057-CV, 2014 WL 7442682, at *2–3 (Tex. App.—Texarkana Dec. 31, 2014, no pet.) (mem. op.); Butler v. Mason, No. 11-05-00273-CV, 2006 WL 3747181, at *1–2 (Tex. App.—Eastland Dec. 21, 2006, pet. denied) (per curiam) (mem. op.); see Self v. Emblem, No. D044728, 2005 WL 1926704, at *1–3, *5 (Cal. Ct. App. Aug. 12, 2005) (affirming a judgment against a plaintiff suing a defense attorney appointed on his behalf to assist with post-conviction relief because the plaintiff failed to assert actual innocence as required by Peeler). Like the Falby court, Texas’s Fourteenth District Court of Appeals has “extended Peeler to apply to assertions of poor-quality legal representation at the pre- and post-trial stages of representation.” Gonyea v. Scott, 541 S.W.3d 238, 245 n.6 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (first citing McLendon v. Detoto, No. 14-06-00658-CV, 2007 WL 1892312, at *1–2 (Tex. App.—Houston [14th Dist.] July 3, 2007, pet. denied) (mem. op.); and then citing Meullion, 2011 WL 5926676, at *3–4).

  55. See, e.g., Costa v. Allen, No. WD67378, 2008 WL 34735, at *7 (Mo. Ct. App.), vacated, 274 S.W.3d 461 (Mo. 2008) (considering a suit against an attorney who did not represent the client at trial); Dushane v. Acosta, No. 68359, 2015 WL 9480185, at *1–2 & n.1 (Nev. Ct, App. Dec. 16, 2015) (dismissing a legal malpractice claim against an attorney who did not directly represent the plaintiff at trial because the plaintiff failed to allege that the attorney’s actions caused him damages without regard to whether the plaintiff had attained post-conviction relief); Hilario v. Reardon, 960 A.2d 337, 344–45 (N.H. 2008) (allowing an exception to the state’s requirement that the plaintiff offer proof of actual innocence when the attorney’s alleged negligence occurred after the convict’s plea and sentencing).

  56. See Golden v. McNeal, 78 S.W.3d 488, 491–92 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

  57. Id. at 491.

  58. Id. at 491, 496.

  59. Id. at 492 (internal quotation marks omitted) (quoting Peeler v. Hughes & Luce, 909 S.W.2d 494, 498 (Tex. 1995) (plurality opinion)).

  60. See Gonyea v. Scott, 541 S.W.3d 238, 247–48 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (refusing to extend Peeler because doing so would not serve the policy goals Peeler advanced); Byrd v. Phillip Galyen, P.C., 430 S.W.3d 515, 525–26 (Tex. App.—Fort Worth 2014, pet. denied) (declining to extend Peeler in the civil context). In Satterwhite v. Jacobs, the First District Court of Appeals said a malpractice claim against an attorney representing a convict at a pre-trial bond hearing was “materially different” from Peeler largely because the representation at issue “did not involve the issue of Satterwhite’s ultimate guilt or innocence.” Satterwhite v. Jacobs, 26 S.W.3d 35, 36 (Tex. App.—Houston [1st Dist.] 2000), aff’d in part, rev’d in part, 65 S.W.3d 653 (Tex. 2001). The court reversed the trial court’s grant of the attorney’s summary judgment motion and remanded for further proceedings. Id. at 37.

  61. See Gonyea, 541 S.W.3d at 247–48.

  62. See id. at 247.

  63. Id. at 240.

  64. Id. at 241–42.

  65. Id. at 242.

  66. Id. at 242–43. Instead, Gonyea apparently relabeled memos drafted by others and placed them in Scott’s file to make it appear that he had performed work on Scott’s behalf. Id.

  67. Id. at 243.

  68. Id. at 242–43.

  69. Id. at 246–48. California appellate courts have reached similar results under similar circumstances. See, e.g., Brooks v. Shemaria, 50 Cal. Rptr. 3d 430, 431, 436 (Ct. App. 2006) (holding that a plaintiff suing for the return of an unused retainer was not required to establish actual innocence before bringing that claim); Bird, Marella, Boxer & Wolpert v. Superior Court, 130 Cal. Rptr. 2d 782, 788–90 (Ct. App. 2003) (holding that a plaintiff claiming that he was not billed according to his contract did not need to first establish actual innocence before bringing his malpractice claim).

  70. Gonyea, 541 S.W.3d at 246. In order to reach this conclusion, the court had to distinguish Shepherd v. Mitchell. See id. at 247. Shepherd also involved a claim against an attorney who failed to file a writ of habeas corpus, but the client in Shepherd received payment in a restitution order from the State Bar of Texas. Shepherd v. Mitchell, No. 05-14-01235-CV, 2016 WL 2753914, at *1 (Tex. App.—Dallas May 10, 2016, pet. dism’d w.o.j.) (mem. op.). Gonyea distinguished Shepherd by noting, first, that Shepherd was a suit for negligent legal representation—as opposed to breach of contract—and second, that the client in Shepherd was not a client seeking contract damages or fee restitution because he had already received restitution for the legal services he never received—unlike Scott who never received a refund from Gonyea. See Gonyea, 541 S.W.3d at 247.

  71. Gonyea, 541 S.W.3d at 247; see supra Section II.A. The court also noted that other Texas appellate courts had applied the doctrine more expansively than the Texas Supreme Court. Gonyea, 541 S.W.3d at 245 (observing that Texas intermediate appellate courts have applied the doctrine beyond the realm of legal malpractice claims, while the Texas Supreme Court has applied it only in the context of legal malpractice).

  72. Gonyea, 541 S.W.3d at 247. The court also noted that ruling in favor of Scott “would not shift responsibility for the crime away from the client or diminish the consequences of the client’s acts. Nor would it undermine our criminal-justice system.” Id.

  73. See id. at 248.

  74. Id. at 247–48 (first citing U.S. Const. amend. VI; and then citing Strickland v. Washington, 466 U.S. 668, 685 (1984)) (“If anything, requiring some evidence of active representation to invoke Peeler defensively recognizes that the constitutional right to assistance of counsel is foundational to our criminal-justice system.”). This allusion to constitutional rights signaled that, if Peeler allowed attorneys to do absolutely nothing for their clients, the doctrine might be unconstitutional. See Gonyea, 541 S.W.3d at 247. Whether the Supreme Court’s interpretation of the Sixth Amendment would align with that of the appellate court is open to debate. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. But in Coleman v. Thompson, the United States Supreme Court determined that “[t]here is no constitutional right to an attorney in state post-conviction proceedings.” 501 U.S. 722, 727, 752 (1991) (involving an attorney’s failure to file a notice of appeal on time for a habeas corpus petition). The Supreme Court offered an exception to the Coleman rule in Martinez v. Ryan, but the rule would not be applicable here. See 566 U.S. 1, 9 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”). As a result, Scott would likely have an uphill battle proving that his claim against Gonyea had constitutional support. Cf. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (citation omitted) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.”).

  75. See Gonyea, 541 S.W.3d at 247.

  76. Peeler v. Hughes & Luce, 909 S.W.2d 494, 495 (Tex. 1995) (plurality opinion).

  77. See Browning & Rames, supra note 2, at 55.

  78. See Brewer v. Hagemann, 771 A.2d 1030, 1032–33 (Me. 2001) (“Some courts have required criminal malpractice plaintiffs to prove actual innocence of the criminal charge, while other courts have required that the conviction be overturned, or that the malpractice plaintiff be exonerated of the criminal charge. A minority of courts have rejected the addition of the element of innocence or exoneration to a malpractice action and have held that a criminal malpractice plaintiff must prove the same elements as a civil malpractice plaintiff.”). The Appendix following this comment provides a complete list of the approach taken by every state to legal malpractice claims in the criminal arena.

  79. See Tim Gavin & Ken Carroll, Exoneration as a Prerequisite to a Criminal Defendant’s Legal Malpractice Claim, Carrington Coleman (Apr. 12, 2016), http://www.ccsb.com/wp-content/uploads/2016/05/Exoneration-as-a-Prerequisite-to-a-Criminal-Defendant_s-Legal-Malpractice-Claim.pdf. [https://perma.cc/X63N-55AY].

  80. See Cort Thomas, Criminal Malpractice: Avoiding the Chutes and Using the Ladders, 37 Am. J. Crim. L. 331, 332–33 (2010).

  81. Arkansas appears to have no special requirement for bringing criminal malpractice claims. See, e.g., Smothers v. Clouette, 934 S.W.2d 923, 924 (Ark. 1996). That said, Arkansas ordinarily requires, in civil cases, proof that but for the attorney’s malpractice, the results at trial would have been different. See Davis v. Bland, 238 S.W.3d 924, 926 (Ark. 2006).

  82. Rantz v. Kaufman, 109 P.3d 132, 136 (Colo. 2005) (en banc); see Michael McDermott, Colorado, in A Survey of the Law of Legal Malpractice (2016), https://www.primerus.com/wp-content/uploads/2016/03/PRI_0216_PDICompendium_LegalMalpractice_FNLR3v1.pdf [https://perma.cc/7BEE-3J9M].

  83. Rose v. Modica, No. 285,2002, 2002 WL 31359867, at *1 (Del. Oct. 18, 2002); Sanders v. Malik, 711 A.2d 32, 34 (Del. 1998) (“The standards for proving ineffective assistance of counsel in a criminal proceeding are equivalent to the standards for proving legal malpractice in a civil proceeding.”). Note that, as discussed below, Delaware does have special rules for public defenders and court-appointed attorneys. See infra Section II.D.11.

  84. Godby v. Whitehead, 837 N.E.2d 146, 151 (Ind. Ct. App. 2005); see Silvers v. Brodeur, 682 N.E.2d 811, 818 (Ind. Ct. App. 1997).

  85. Schwehm v. Jones, 872 So. 2d 1140, 1147 n.7 (La. Ct. App. 2004).

  86. Gebhardt v. O’Rourke, 510 N.W.2d 900, 906 (Mich. 1994).

  87. See Spencer v. Beck, 245 P.3d 21, 23–24 (Mont. 2010) (allowing a legal malpractice claim against an attorney who failed to pursue post-conviction relief that might have led to the overturning of the plaintiff’s conviction); Hauschulz v. Michael Law Firm, 30 P.3d 357, 360 (Mont. 2001) (holding that an attorney’s “failure to consult with his client prior to entering a guilty plea on his behalf could clearly be construed as a failure to use reasonable care and skill”).

  88. Duncan v. Campbell, 936 P.2d 863, 865–66 (N.M. Ct. App. 1997).

  89. See Klem v. Greenwood, 450 N.W.2d 738, 743 (N.D. 1990).

  90. See Krahn v. Kinney, 538 N.E.2d 1058, 1061 (Ohio 1989); Amy L. Leisinger, A Criminal Defendant’s Inability to Sue His Lawyer for Malpractice: The Other Side of the Exoneration Rule, 44 Washburn L.J. 693, 707 (2005).

  91. See Willey v. Bugden, 318 P.3d 757, 761 n.5 (Utah Ct. App. 2013) (noting that other states require post-conviction relief or actual innocence but acknowledging no such rule in Utah).

  92. See Dove v. Harvey, 608 S.E.2d 798, 801–02 (N.C. Ct. App. 2005) (quoting Belk v. Cheshire, 583 S.E.2d 700, 706 (N.C. Ct. App. 2003)).

  93. The law in Alabama is in flux and unsettled, but the Alabama Supreme Court has suggested that convicts asserting legal malpractice claims must establish that but for their attorneys’ negligence, the outcome at trial would have been different. See Bennardo, supra note 15, at 343 n.9 (citing contradicting cases imposing this standard and a stricter variant in the state).

  94. See McCord v. Bailey, 636 F.2d 606, 611 (D.C. Cir. 1980).

  95. See Gomez v. Peters, 470 S.E.2d 692, 695 (Ga. Ct. App. 1996). Note that the state also denies convicts who have admitted guilt the right to sue for legal malpractice. See id.

  96. McVaney v. Baird, Holm, McEachen, Pedersen, Hamann, & Strasheim, 466 N.W.2d 499, 507 (Neb. 1991); Eno v. Watkins, 429 N.W.2d 371, 372 (Neb. 1988).

  97. See Laurence v. Sollitto, 788 A.2d 455, 459 (R.I. 2002).

  98. E.g., Glenn v. Aiken, 569 N.E.2d 783, 788 (Mass. 1991); see Bennardo, supra note 15, at 342 & n.3 (listing cases mentioning this requirement); Browning & Rames, supra note 2, at 61­–62 (noting that Massachusetts, Washington, Wisconsin, and Illinois have adopted this rule).

  99. Paulsen v. Cochran, 826 N.E.2d 526, 530 (Ill. App. Ct. 2005). An exception to actual innocence requirement applies if the attorney intentionally sought his client’s conviction. Id. at 531.

  100. Ray v. Stone, 952 S.W.2d 220, 224 (Ky. Ct. App. 1997) (noting in dicta that attaining post-conviction relief could help establish the convict’s innocence but holding that it was the convict’s guilty plea at the trial court that precluded him from claiming he was actually innocent).

  101. Marchetti v. Atwood, No. 17-00749, 2017 WL 5760936, at *3 (Mass. Super. Ct. Nov. 21, 2017).

  102. See Costa v. Allen, 323 S.W.3d 383, 387 (Mo. Ct. App. 2010).

  103. Britt v. Legal Aid Soc’y, Inc., 741 N.E.2d 109, 110 (N.Y. 2000); Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987).

  104. See Robinson v. Southerland, 123 P.3d 35, 43–44 (Okla. Civ. App. 2005).

  105. Brown v. Theos, 550 S.E.2d 304, 306–07 (S.C. 2001).

  106. Tallmadge v. Boyle, 730 N.W.2d 173, 181 (Wis. Ct. App. 2007).

  107. Shaw v. State, 861 P.2d 566, 569, 572 (Alaska 1993) (stating that the statute of limitations for a malpractice suit does not begin until the criminal defendant obtains post-conviction relief); see Bruce Gagnon & Christopher Slottee, State of Alaska, in The Law of Lawyers’ Liability 13 (Merri A. Baldwin et al. eds., 2012).

  108. See Bennardo, supra note 15, at 341–42 (defining “legal innocence” as “prov[ing] by a preponderance of the evidence that but for the lawyer’s negligence, the malpractice plaintiff would not have been convicted in the underlying criminal trial by proof beyond a reasonable doubt”); Browning & Rames, supra note 2, at 61 & nn.53–60 (noting that forms of this rule have been applied in Tennessee, Iowa, West Virginia, Georgia, Idaho, Kentucky, New Hampshire, and California).

  109. Glaze v. Larsen, 83 P.3d 26, 32–33 (Ariz. 2004) (en banc) (citation omitted) (stating that “‘any post-conviction relief suffices,’ . . . as long as the underlying criminal proceedings are thereby terminated favorably to the defendant”).

  110. Coscia v. McKenna & Cuneo, 25 P.3d 670, 673–74 (Cal. 2001); Wiley v. Cty. of San Diego, 966 P.2d 983, 987 (Cal. 1998).

  111. See Molen v. Christian, 388 P.3d 591, 595–96 (Idaho 2017).

  112. Barker v. Capotosto, 875 N.W.2d 157, 166 (Iowa 2016); Trobaugh v. Sondag, 668 N.W.2d 577, 583 (Iowa 2003).

  113. Canaan v. Bartee, 72 P.3d 911, 913 (Kan. 2003).

  114. Berringer v. Steele, 758 A.2d 574, 597 (Md. Ct. Spec. App. 2000).

  115. Noske v. Friedberg, 670 N.W.2d 740, 744 (Minn. 2003).

  116. Trigg v. Farese, No. 2015-CA-00045-SCT, 2018 WL 6241322, at *8 (Miss. Nov. 29, 2018) (“To be clear, when we say a defendant must be ‘exonerated,’ we mean he must obtain a more favorable disposition of his conviction or sentence through direct appeal, postconviction relief, habeas corpus, or similar means within the criminal justice process.3 At that point, the malpractice suit may be initiated even if the underlying criminal case has not yet been finally resolved.” (footnote omitted)).

  117. Rogers v. Cape May Cty. Office of the Pub. Def., 31 A.3d 934, 939–40 (N.J. 2011).

  118. See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001).

  119. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality opinion).

  120. Stevens v. Bispham, 851 P.2d 556, 557, 560 (Or. 1993) (en banc).

  121. Drollinger v. Mallon, 260 P.3d 482, 490 (Or. 2011) (en banc). If the plaintiff’s alleged harm is suffering brought about by continued incarceration, however, the plaintiff “must plead and prove that, if defendants had performed competently in the post-conviction proceeding, plaintiff would have obtained relief in that proceeding, that he would have avoided reconviction in any subsequent proceeding on remand, and that he would have been released from prison.” Id.

  122. See Bailey v. Tucker, 621 A.2d 108, 114–15 (Pa. 1993).

  123. See Schreiber v. Rowe, 814 So. 2d 396, 398–400 (Fla. 2002) (per curiam); see Steele v. Kehoe, 747 So. 2d 931, 932–33 (Fla. 1999); Cocco v. Pritcher, 1 So. 3d 1246, 1248 (Fla. Dist. Ct. App. 2009) (“The [plaintiff] must also ‘establish [that] the final disposition of the underlying criminal case [was] in his or her favor.’”); Cira v. Dillinger, 903 So. 2d 367, 370–71 (Fla. Dist. Ct. App. 2005).

  124. See Clark v. Robison, 944 P.2d 788, 790 (Nev. 1997) (per curiam) (finding that post-conviction relief is required for a malpractice suit); Morgano v. Smith, 879 P.2d 735, 737–38 (Nev. 1994) (per curiam) (adding the requirement that the plaintiff prove actual innocence as an element of a malpractice suit).

  125. See Therrien v. Sullivan, 891 A.2d 560, 563–64 (N.H. 2006) (requiring proof of actual innocence and post-conviction relief). The criminal malpractice claim begins to accrue when the plaintiff attains and establishes by a preponderance of the evidence actual innocence to bring the claim. Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996, 998–1000 (N.H. 1999).

  126. Adkins v. Dixon, 482 S.E.2d 797, 800–02 (Va. 1997).

  127. Ang v. Martin, 114 P.3d 637, 640–41 (Wash. 2005) (en banc).

  128. Humphries v. Detch, 712 S.E.2d 795, 801 (W. Va. 2011).

  129. Browne v. Robb, 583 A.2d 949, 950–51 (Del. 1990).

  130. Dziubak v. Mott, 503 N.W.2d 771, 773 (Minn. 1993); Morgano v. Smith, 879 P.2d 735, 736–37 (Nev. 1994) (per curiam).

  131. See Nev. Rev. Stat. Ann. §§ 41.0307(4)(b), 41.032 (LexisNexis 2012 & Supp. 2016); Morgano, 879 P.2d at 737.

  132. The Connecticut Supreme Court has not yet considered the issue, but a federal court ruling determined that a convicted plaintiff would need to seek appellate or post-conviction relief before bringing a malpractice suit. See McCurvin v. Law Offices of Koffsky & Walkley, No. CIV.A.3:98CV182(SRU), 2003 WL 223428, at *3–4 (D. Conn. Jan. 27, 2003).

  133. See Jeffrey S. Portnoy & Peter W. Olson, State of Hawaii, in The Law of Lawyers’ Liability, supra note 107, at 118 (“Hawaii does not have any reported cases requiring a criminal defendant/legal malpractice plaintiff to prove innocence in order to prove causation.”).

  134. See William C. Saturley & Holly E. Russell, State of Maine, in The Law of Lawyers’ Liability, supra note 107, at 205 (“We have not yet had occasion to determine whether legal malpractice based on negligent representation in a criminal case should be treated differently from legal malpractice arising from representation in a civil matter.” (citing Brewer v. Hagemann, 771 A.2d 1030, 1031–33 (Me. 2001))).

  135. See Thomas J. Welk & Jason R. Sutton, State of South Dakota, in The Law of Lawyers’ Liability, supra note 107, at 455 (“There are no South Dakota cases addressing whether the plaintiff must prove innocence to recover in legal malpractice actions arising out of a criminal case.”).

  136. See Herbert G. Ogden, State of Vermont, in The Law of Lawyers’ Liability, supra note 107, at 505 (noting that in 2006 the Vermont Supreme Court “declined to decide whether to require actual innocence.” (citing Bloomer v. Gibson, 912 A.2d 424, 431 (Vt. 2006))).

  137. Cf. Scott E. Ortiz, State of Wyoming, in The Law of Lawyers’ Liability, supra note 107, at 558 (“Wyoming does not have an innocence requirement for legal malpractice plaintiffs in criminal cases.”).

  138. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality opinion) (holding that a criminal defendant does not have a malpractice action unless the guilty verdict is a result of the attorney’s illegal conduct and the conviction has been overturned).

  139. Jolie McCullough & Justin Dehn, How Some See Texas as the “Gold Standard” Against Wrongful ConvictionsTex. Trib. (Sept. 20, 2017), https://www.texastribune.org/2017/09/20/texas-lawmakers-hope-prevent-wrongful-convictions/ [https://perma.cc/DA8Y-4BFU].

  140. Id.; Texas Governor Signs Landmark Comprehensive Legislation to Prevent Wrongful ConvictionsInnocence Project (June 15, 2017), https://www.innocenceproject.org/texasgovernorsignslandmarkbill/ [https://perma.cc/M3X7-792E] (“Texas now has the most comprehensive statute in the nation to regulate the use of jailhouse informants, which played a role in nine wrongful convictions in the state and is a leading contributor to wrongful convictions nationally.”); Bill Texts: TX HB34 | 2017-2018 | 85th Legislature, LegiScan, https://legiscan.com/TX/drafts/HB34/2017 [https://perma.cc/CV4D-UKT6] (last visited Mar. 19, 2019) (showing that the bill was passed on June 12, 2017, and became effective on September 1, 2017). These reformations were inspired, in part, by the stories of people recently exonerated. McCullough & Dehn, supra note 139.

  141. McCollough & Dehn, supra note 139 (“Texas has long led the nation in the number of people it exonerates . . . . Since 2010, more than 200 people have been exonerated in Texas, according to the National Registry of Exonerations. That’s more than twice as many as any other state during the same period.”). The National Registry of Exonerations tracks the number of exonerations by state, recording the alleged crime, number of years lost in prison, and more. Exonerations by State, Nat’l Registry Exonerations, http://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx [https://perma.cc/V9WC-CE4Q] (last visited Mar. 19, 2019). The registry was the result of coordinated efforts by the Newkirk Center for Science & Society at the University of California Irvine, University of Michigan Law School, Michigan State University College of Law, and the Center on Wrongful Convictions at Northwestern University School of Law. Id. As of February 21, 2019, Texas has exonerated 359 people since 1989. The state with the second highest number of exonerations is Illinois with 281. Id.

  142. Conviction Rates for Concealed Handgun License Holders, Tex. Dep’t Pub. Safety, http://www.dps.texas.gov/rsd/ltc/reports/convrates.htm [https://perma.cc/3XT3-2R8Q] (last visited Mar. 19, 2019) (listing total convictions annually from 2001 to 2017, which range from 40,624 in 2001 to 73,914 in 2010).

  143. Peeler, 909 S.W.2d at 500.

  144. Many states reference Peeler as justification for embracing an approach to criminal defense legal malpractice cases that makes it more difficult to hold attorneys accountable for negligent representation. See, e.g., Coscia v. McKenna & Cuneo, 25 P.3d. 670, 674 (Cal. 2001) (quoting Peeler, 909 S.W.2d at 498).

  145. See supra Section II.D; see also infra Appendix.

  146. See supra Section II.B; Duncan, supra note 1, at 1292–93 (“Lawyers practicing without accountability present the very real risk of routinely providing substandard legal representation.”).

  147. The four policies advanced in Peeler include: prohibiting a convict from profiting from his illegal conduct, prohibiting a convict from shifting responsibility for the crime to a third party, protecting convicts from shirking from the consequences of their actions, and prevent the undermining of the criminal justice system. Peeler, 909 S.W.2d at 497–98.

  148. See Peeler, 909 S.W.2d at 501 (Phillips, C.J., dissenting).

  149. Duncan, supra note 1, at 1305.

  150. Id. at 1287. See also Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996, 999 (N.H. 1999).

  151. In re Estate of Laspy, 409 S.W.2d 725, 730 (Mo. Ct. App. 1966).

  152. Gonyea v. Scott, 541 S.W.3d. 238, 245 (Tex. App—Houston [1st Dist.] 2017, pet. denied) (citing Peeler, 909 S.W.2d at 497–98).

  153. Id. (citing Peeler, 909 S.W.2d at 497–98).

  154. See Johnson, supra note 29, at 298 (suggesting that the “war on crime” policy justification for limiting criminal legal malpractice claims may be explained by a different underlying concern that criminal defense attorneys could be at risk of receiving a deluge of malpractice suits).

  155. See Peeler, 909 S.W.2d at 498.

  156. Id. at 500; see Gonyea, 541 S.W.3d at 245.

  157. Duncan, supra note 1, at 1291–92.

  158. See Browning & Rames, supra note 2, at 55.

  159. See id. at 55–56; Johnson, supra note 29, at 298. See also Leisinger, supra note 90, at 706 (“Prisoners have a lot of time and little else to do, and if prisoners must obtain post-conviction relief before maintaining a legal malpractice action, a great deal of litigation can be avoided.” (citation omitted)).

  160. Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996, 999–1000 (N.H. 1999) (“[T]he pool of legal representation available to criminal defendants, especially indigents, needs to be preserved . . . . Setting the standard at a lower level may well dampen counsels’ willingness to enter the criminal defense arena.”).

  161. See Browning & Rames, supra note 2, at 55; Susan M. Treyz, Note, Criminal Malpractice: Privilege of the Innocent Plaintiff?, Fordham L. Rev. 719, 731–33 (1991). In Mahoney, the court argued that public policy favors a “stricter standard for criminal malpractice actions” because, among other policy considerations, “the criminal justice system affords individuals charged with crimes a panoply of protections against abuses of the system and wrongful conviction . . . .” 727 A.2d at 999. The court proceeded to list safeguards for criminal defendants including “the right to constitutionally effective defense counsel, . . . . [T]he law governing search and seizure, the probable cause requirement for arrest, the beyond a reasonable doubt standard for conviction, and post-conviction relief not afforded civil litigants.” Id. (citations omitted).

  162. See supra Section II.D.1.

  163. See Duncan, supra note 1, at 1296 (arguing that guilty criminal defendants and innocent criminal defendants alike should be entitled to a tort remedy “by means of a criminal malpractice action”).

  164. See id. at 1268.

  165. See id. at 1287, 1306.

  166. See Gonyea v. Scott, 541 S.W.3d 238, 241–42 (Tex. App.—Houston [1st] 2017, pet. denied).

  167. See Duncan, supra note 1, at 1291.

  168. Cf. Gonyea, 541 S.W.3d at 247–48.

  169. See Duncan, supra note 1, at 1287.

  170. See supra Section II.C.

  171. Peeler v. Hughes & Luce, 909 S.W.2d 494, 498 (Tex. 1995) (plurality opinion).

  172. Id. at 498.

  173. Duncan, supra note 1, at 1272.

  174. See Browning & Rames, supra note 2, at 55–56.

  175. See Bennardo, supra note 15, at 362. And the opportunity to recover financially from a criminal legal malpractice suit may not fully offset the jail time, fines, and other consequences of conviction that criminal defendants face. For instance, Carol Peeler was fined a total of $250,000 in addition to other penalties under her plea deal, and she paid her defense counsel at least another $250,000 to represent her. Peeler, 909 S.W.2d at 496. If her malpractice suit had allowed her a $500,000 recovery minus attorney’s fees, she still would have to serve her prison sentence and five years on probation, as well as the reputational harm and other consequences of her conviction. See id. Whether this result “would allow the criminal to profit [from her] own fraud” or to “escap[e] the consequences of” her crime is questionable. See id. at 497, 500 (quoting State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo. Ct. App. 1985)).

  176. Duncan, supra note 1, at 1287 (“[T]here is no public policy favoring allowing [sic] a negligent attorney to shift the responsibility for that attorney’s negligence onto his client simply because his client may have committed a criminal offense. Yet, that is precisely the effect of the present standard.”).

  177. See Leisinger, supra note 90, at 706.

  178. See Duncan, supra note 1, at 1288–89.

  179. Id. at 1290.

  180. See, e.g., supra Section II.D.11.

  181. See Gonyea v. Scott, 541 S.W.3d 238, 247–48 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). It would also allow others who paid for unreceived or inadequate legal services to pursue their own claims against criminal defense attorneys, such as the parents of convicts who hire defense counsel to defend their children facing criminal charges or seeking post-conviction relief. See, e.g., Manderscheid v. Cogdell, No. 01-99-00930-CV, 2000 WL 233154, at *1–2 (Tex. App.—Houston [1st Dist.] Mar. 2, 2000, no pet.) (not designated for publication) (applying Peeler to bar claims by the convict’s parents against a defense attorney whom they hired to defend their son). Allowing these claims would certainly not allow convicts to profit from their crimes.

  182. Cf. supra Section III.B (discussing alternatives to the Peeler doctrine).

  183. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–99 (Tex. 1995) (plurality opinion) (making multiple references to the policy goal of keeping convicts from profiting from their crimes).

  184. This rule would allow convicts to receive a refund on money spent in contract with attorneys for services that were never provided, as in Gonyea. See Gonyea, 541 S.W.3d at 241–42.

  185. Alternatively, courts could allow convicted plaintiffs financial compensation for punishments the convict would likely not have received had the plaintiff received better representation. The Colorado Supreme Court allowed a similar argument in Rantz v. Kaufman; while rejecting the exoneration rule, it established the “legally cognizable harm” standard in its place. 109 P.3d 132, 137–38 (Colo. 2005) (en banc); see also infra Section III.B.6 (discussing a requirement of proof of a legally cognizable injury as an alternative to the Peeler doctrine). Responding to the argument that criminals should not be allowed to profit from their crimes, the court ruled that

    [P]reventing an individual from profiting from criminal conduct is better addressed at the individual case level. Before recovering damages, a criminal defendant will have to demonstrate that the negligence of his or her attorney caused legally cognizable harm. A criminal defendant who prevails in a malpractice action is receiving compensation for an injury suffered, in the form of time spent in prison or the burden of a criminal record, not a windfall.

    Rantz, 109 P.3d at 137–38.

  186. See Duncan, supra note 1, at 1293–94. This alternative remedy would be similar to that in Dugger v. Arredondo in which the Texas Supreme Court considered a proportionate responsibility statute for tort claims and ruled that application of the common law unlawful acts doctrine, which barred recovery for plaintiffs who were engaged in unlawful acts, was no longer a viable affirmative defense in wrongful death suits. See 408 S.W.3d 825, 831–32 (Tex. 2013); Browning & Rames, supra note 2, at 124–26 (suggesting that Dugger v. Arredondo may one day be applied in the legal malpractice context); Johnson, supra note 29, at 299–300. Application of a proportionate responsibility statute in the context of criminal legal malpractice suits would allow malpractice claims to proceed but would treat the criminal’s misconduct that gave rise to the situation as partially responsible for any penalty imposed on the attorney. See Browning & Rames, supra note 2, at 125.

  187. This was the point of contention at issue in Falby, the case that first extended Peeler in Texas to bar claims against attorneys who agreed to represent convicts after their original conviction proceedings had concluded. See Falby v. Percely, No. 09-04-422 CV, 2005 WL 1038776, at *2–3 (Tex. App.—Beaumont May 5, 2005, no pet.) (mem. op.).

  188. See Duncan, supra note 1, at 1291 & n.175 (listing safeguards designed to protect criminal defendants from negligent representation).

  189. See, e.g., Falby, 2005 WL 1038776, at *2–3 (affirming summary judgment that barred a claim against an attorney who did not represent the plaintiff at trial).

  190. Drollinger v. Mallon, 260 P.3d 482, 489–90 (Or. 2011) (en banc).

  191. See supra Section II.D.3 (discussing six states that have adopted this approach).

  192. Restatement (Third) of the Law Governing Lawyers § 53 cmt. d (Am. Law Inst. 2000).

  193. See Duncan, supra note 1, at 1296–97 (arguing in favor of the legal injury rule and explaining that “[c]ourts need to recognize that a person convicted of criminal charges may have suffered harm by virtue of his attorney’s negligent conduct even if, without the negligent conduct, the person may have been convicted and punished to some extent”).

  194. See Dep’t of Research & Analysis, State Bar of Tex., 2014 Attorney Population Density by Metropolitan Statistical Area 2 (2014–15), https://www.texasbar.com/AM/Template.cfm?Section=Archives&Template=/CM/ContentDisplay.cfm&ContentID=30865 [https://perma.cc/3BUU-XNB9].

  195. Office of Chief Disciplinary Counsel, State Bar of Tex., https://www.texasbar.com/Content/NavigationMenu/ForThePublic/ProblemswithanAttorney/GrievanceEthicsInfo1/OfficeOfCDC.htm [https://perma.cc/N25G-KDK5] (last visited Mar. 19, 2019).

  196. According to professors Hazard and Dondi, “[t]here are no reliable figures on the effectiveness of professional policing of incompetence, and a reliable measure of the incidence of incompetence would be difficult or impossible to construct. However, we believe that disciplinary response to lawyer incompetence is weak everywhere.” Geoffrey C. Hazard Jr. & Angelo Dondi, Legal Ethics: A Comparative Study 136 (2004). Professor Duncan has similarly noted that “ethics opinions and decisions alike have indicated that the disciplinary process should not be used to ensure that clients receive competent lawyering.” Meredith J. Duncan, The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 50 BYU L. Rev. 1, 43 (2002) (citations omitted). Professor Duncan further argued that “an automatic referral system should be implemented” that subjects “the conduct of any lawyer who is the subject of an ineffective assistance of counsel claim or a criminal malpractice claim to [an] appropriate disciplinary body.” Id. at 46.

  197. See Duncan, supra note 1, at 1291 & n.178 (arguing that neither the criminal justice system nor the disciplinary system provides criminal defendants adequate protections against incompetent representation). The same is likely true outside of Texas. Nationally speaking, “[d]isciplinary sanctions against errant criminal defense lawyers are a rarity.” Johnson, supra note 29, at 297.

  198. See Tex. Const. art. XVII, § 1(a) (stating that the legislature may submit proposed amendments to voters with the support of two-thirds of the Texas House and Senate).

  199. See Duncan, supra note 1, at 1254–55 (stating that existing obstacles render “the civil system . . . essentially unavailable as a means of monitoring—and thereby improving—criminal defense lawyering”).

  200. See supra Section III.B.1.