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Court limits malpractice filings

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A conviction must be overturned before a criminal defendant may sue his lawyer for malpractice, the California Supreme Court ruled Monday.

By a 6-0 vote, the justices clarified a 1998 decision in which they held that only an innocent defendant can bring a malpractice suit against a former lawyer. The new ruling helps define what innocence means.

In the 1998 ruling, the court left unanswered whether defendants can merely claim their innocence or try to prove it in a civil trial.

In Monday's ruling, the justices said that a former defendant must be exonerated on appeal in the criminal courts or because of a constitutional error before bringing a malpractice suit.

"An individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by post conviction relief," wrote Chief Justice Ronald George in the court's opinion.

The decision was a setback for Nicholas Coscia, a lawyer who was indicted in 1993 on federal charges of securities fraud.

He hired San Diego lawyers McKenna & Cuneo to represent him and eventually pleaded guilty to one count of conspiracy. He was sentenced to two years probation and fined $5,000.

He sued his lawyers for giving him bad legal advice. A trial judge threw out the lawsuit. A state appeals court reversed the judgment, noting that if defendants were required to pursue appeals before they could sue, they would miss the one-year statute of limitations.

But the state Supreme Court said a defendant must first have a conviction set aside so there is no conflict between the criminal and civil court rulings.

Addressing the deadline issue, the court said that a trial judge could put the malpractice suit on hold while the defendant pursues criminal appeals. The court sent the case back to the trial court to give Coscia a chance to amend his malpractice complaint.

San Francisco attorney Ron Mallen, who represented the law firm, called the decision "a refinement" of the 1998 ruling. But he expressed concern about the court allowing a defendant to sue for malpractice while pursuing appeals. That situation "creates a state of limbo for the lawyers," he said.