A California appellate court has affirmed the dismissal of a legal malpractice action. In Kassab v. Leff, a client sued his former attorney for negligently representing him in criminal proceedings. The client was tried and convicted of numerous drug related crimes. The client then filed a notice of appeal, but twice defaulted. He then brought a malpractice claim against the attorney.
The attorney successfully moved to dismiss the complaint and the client then appealed. Under California law, in order to prevail on a legal malpractice claim arising out of a criminal case, the plaintiff must prove his actual innocence in addition to the standard elements of negligence. To survive a motion to dismiss, the complaint must plead innocence by showing post-conviction exoneration or at least the diligent pursuit of post-conviction relief.
The appellate court affirmed the motion to dismiss finding that the client’s complaint did not sufficiently allege his actual innocence and it could not be cured by a further amendment. The court reasoned that merely filing a notice of appeal did not constitute a diligent pursuit of post-conviction relief.
Decision: Kassab v. Leff