June 18, 2020 – A criminal defendant sued his criminal defense lawyer for legal malpractice, claiming the lawyer failed to raise an affirmative defense. Recently, the Wisconsin Supreme Court rejected his claim because he could not prove his innocence.

The “actual innocence rule” – adopted by a state appeals court in 2002 based on public policy considerations – requires a defendant to establish innocence if attempting to sue his or her criminal defense lawyer for legal malpractice related to the criminal case.

In this case the defendant, David Skindzelewski sued his lawyer for legal malpractice claiming the lawyer did not raise the statute of limitations as an affirmative defense.

In 2015, Skindzelewski pled guilty to a charge of theft by contractor for receiving more than $1,200 to install roof vents on a residence but never performed the work.

The conviction was barred by the applicable statute of limitations but his lawyer did not raise that defense. His conviction was later vacated on appeal but Skindzelewski had already served half of his eight month sentence in the county jail.

The legal malpractice claim followed. But in Skindzelewski v. Smith, 2020 WI 57 (June 18, 2020), a supreme court majority (5-1) ruled the malpractice claim cannot proceed and rejected Skindzelewski’s argument that an exception should apply in his case.

Specifically, Skindzelewski argued – based on limited exceptions identified in other jurisdictions – that an exception should apply if “counsel’s negligence results in a conviction or sentence unauthorized by law.” But the majority was not persuaded.

“Skindzelewski’s reliance on these cases to support his proposed exception is misplaced,” wrote Justice Rebecca Bradley for the majority.

In a cases from Oregon and Washington, the courts applied an exception to proving actual innocence where the plaintiffs alleged their defense attorneys were negligent for failing to challenge the imposition of sentences well beyond statutory maximums.

Skindzelewski, the majority explained, was not claiming his sentence exceeded the statutory maximum. He was challenging the conviction itself.

“As a preliminary matter, neither of these cases applied an exception to the actual innocence rule based on a failure to raise an affirmative defense and we have not discovered a single case that has done so,’ Justice R. Bradley wrote.

“Nothing about Skindzelewski's case warrants developing an exception to the actual innocence rule; recognizing one under these circumstances would reward criminality.”

Skindzelewski cited a third case from New Hampshire in which the court applied an exception to the actual innocence rule where the defense lawyer – without informing his client – withdrew a plea deal that would have resulted in partial sentence suspension.

The defendant was not challenging the actual conviction, only that his lawyer’s negligence barred him from receiving a suspended sentence.

By contrast, Skindzelewski argued that he was wrongfully convicted – based on his attorney’s negligence – because the criminal charges against him were barred.

“The law bars such legal malpractice claims because even if an attorney’s negligence harms a defendant by adversely affecting the outcome of the case, attorney error does not negate a guilty defendant’s culpability,” Justice R. Bradley wrote.

Concurrence and Dissent

Justice Brian Hagedorn agreed with the mandate but not the rationale. In concurrence, he questioned whether the decision establishing the actual innocence rule – Hicks v. Nunnery, 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809 – was rightly decided.

“Although a do not question our authority to act as a common law court in narrow areas, a broad public policy pronouncement like the one in Hicks is probably best left to those elected to be policymakers – the legislature,” Justice Hagedorn wrote.

“We might consider eliminating the Hicks rule and allowing criminal legal malpractice claims to undergo the standard rigors of any other legal malpractice claim.”

Justice Rebecca Dallet dissented. She said a narrow exception to the actual innocence rule should be established in cases where “defense counsel’s failure to raise a valid statute of limitations defense results in an unlawful conviction.”

“The civil tort system’s purpose is to compensate an injured party and make them whole,” Justice Dallet wrote.

“The majority fails to adequately explain why shifting the burden of defense counsel’s malpractice on Skindzelewski is appropriate under these circumstances.”

Justice Ann Walsh Bradley did not participate.