Legal Malpractice in Criminal Law: Standards for Proving Innocence


Consider that you have been wrongfully charged with a criminal offense. You hire an attorney and the case ultimately goes to trial. Due to your lawyer’s incompetence, you are found guilty and convicted. You hire a new lawyer, and on appeal, your conviction is thrown out. Because of all the turmoil caused by your criminal case, you now sue your initial lawyer for legal malpractice.

You may be surprised to find out that in order to be successful in your legal malpractice case, you may have to show that you are actually innocent of the criminal charge. Having your conviction overturned may not be enough. Fortunately, a recent Texas Supreme Court case explained below sheds some light on what is now required for a criminal defendant to successfully bring a legal malpractice claim against their criminal defense attorney.

Traditionally, in Texas, proving a legal malpractice claim in connection with a criminal case involved a showing of actual innocence through either direct appeal or through a post-conviction habeas corpus petition. What that means is that an acquittal or withdrawal of charges typically was not enough to show actual innocence of the underlying criminal charge. Effectively, this made it extremely difficult for criminal defendants to prove legal malpractice claims against their criminal defense attorneys.

Gray v. Skelton

In looking at the fairly high burden that criminal defendants have to deal with in proving a legal malpractice claim, the Texas Supreme Court in Gray v. Skelton effectively modified the legal requirements and introduced a new procedure in showing actual innocence. No longer are criminal defendants confined to showing actual innocence through direct appeal or through a habeas corpus petition.

Under the new rule, the jury deciding the legal malpractice claim is first presented with a question of the criminal defendant’s actual innocence as to the underlying criminal charge. If answered affirmatively, the jury will then decide on the merits of the legal malpractice claim. The standard of proof for the innocence question is a preponderance of evidence. In other words, in order to satisfy the actual innocence question, all that must be shown by the evidence is that more likely than not, the criminal defendant was innocent of the charge.

The Supreme Court in Gray v. Skelton also addressed the issue of tolling in legal malpractice claims. Tolling can prolong the time that you have to bring your legal malpractice claim. The Court expanded the tolling requirements to not just direct appeals, but also post-conviction relief proceedings. However, the court placed one restriction into effect: there must not be any gaps in time between the direct appeal and the post-conviction relief. If there are, the statute of limitations may result in the legal malpractice claim being barred.

Bringing In A Legal Malpractice Lawyer

Legal malpractice cases could fall apart when they are taken on by attorneys who are not well versed on bringing malpractice cases or who do not have trial experience. The level of legal expertise can impact the amount of money that you receive in your case. William F. McMurry, who has four decades of experience fighting for clients’ rights in malpractice cases, knows this. Notably, Mr. McMurry is the only attorney who is Board Certified as a legal malpractice and medical malpractice trial specialist by the American Board of Professional Liability Attorneys in Kentucky, Florida and North Carolina. If your attorney caused you to have a bad result in your legal matter, reach out to William F. McMurry & Associates at (502) 326-9000 or contact us online to consult with our knowledgeable counsel today.