Defense Attorney Malpractice Suits Just Got Easier in Iowa

The Iowa Supreme Court on Friday ruled that a man who pleaded guilty to soliciting a minor for sex but later had the conviction overturned can sue his defense attorney for legal malpractice without being required to prove he’s innocent.

In making the decision, a five-man majority of the court for the first time in Iowa declined to adopt proof of actual innocence as a prerequisite to sue one’s criminal defense attorney.

The case involves Robert Barker who in 2006 placed crudely worded graffiti on the wall of a public restroom in an Emmetsburg park inviting boys to contact his email address for sex.

An officer posing as a juvenile arranged to meet Barker and arrested him. He was charged with attempted enticement of a minor and solicitation of a minor to commit a sex act.

Barker pleaded guilty to the solicitation charge in October 2006. The other charge was dropped as part of the plea agreement. He was given a suspended five-year sentence, placed on probation and ordered to enter a sex offender treatment program.

At his sentencing hearing, Barker admitted to communicating with a person he thought was a 15-year-old male and that they “came to an understanding that we would meet and possibly sexual activity could happen.”

A judge in 2011 found that Barker’s attorney had been ineffective for allowing him to plead guilty to a crime for which there was no factual basis. The judge concluded the circumstances of Barker’s actions did not correspond to the charge for which he was convicted and his conviction was overturned.

Barker sued in March 2013, accusing his attorneys of committing legal malpractice by advising him to enter the plea agreement.

The defense attorneys argued Iowa courts should require a plaintiff to prove actual innocence before pursuing a lawsuit for legal malpractice in a criminal case dismissed by the courts.

The district court judge agreed that actual innocence must be established in a criminal malpractice action. The judge also agreed that since Barker acknowledged illegal acts in his plea sentencing despite county prosecutors choosing not to pursue additional charges, his actual innocence could not be proven.

Barker appealed.

The majority Supreme Court opinion written by Justice Edward Mansfield said other states including California, Florida, Massachusetts, Nebraska, and New York have adopted an actual innocence requirement.

The Iowa justices, however, took a different approach. They said a malpractice plaintiff still has the high bar of getting a conviction reversed and defense attorneys still have the opportunity to defend themselves to a jury.

Justices Bruce Zager and Thomas Waterman disagreed in a dissenting opinion, which said Iowa should join most states that require defendants to prove they were innocent of a crime before they can sue their defense attorney.

“In my opinion, an admission by the malpractice claimant of actual guilt to a crime should also eliminate any claim for criminal malpractice,” Zager wrote.

Des Moines criminal defense attorney Gary Dickey Jr., who has represented clients filing legal malpractice lawsuits, said only a handful of cases a year result in reversal of criminal convictions and fewer still are due to attorney error.

“We’re talking very narrow cases this would even affect, and for those narrow cases, it just makes it easier for these cases to go to a jury,” Dickey said. “I don’t think it has a big practical impact for most people. But for those people who believe they were wrongly imprisoned as a result of their attorney’s error, it makes it easier for them to seek compensation.”

Barker’s case will return to district court where the lawsuit against his attorneys will proceed to trial.