The “actual innocence” requirement in legal malpractice claims against criminal defense counsel generally requires a plaintiff to prove that they did not commit the crime which led to the criminal case in which they contend their lawyers were negligent. In most jurisdictions, the requirement is an additional element of a legal malpractice claim that a plaintiff must establish and is traditionally rooted in public policy considerations. In Washington, Ang v. Martin, 154 Wn.2d 477, 114 P.3d 637 (2005), states the basic requirement and Piris v. Kitching, 185 Wn.2d 856, 375 P.3d 627 (2016), discusses a very narrow exception for situations where the negligence led to the imposition of a sentence beyond what was authorized. On a practical level, the actual innocence requirement makes it very difficult to successfully sue a criminal defense lawyer for malpractice.
Alaska and Oregon recently spoke to their versions of the actual innocence requirement. While generally similar to Washington’s approach, the decisions reflect their own jurisdictional nuances.
Marino v. State, 577 P.3d 992 (Alaska App. 2025), wasn’t a malpractice case. Rather, it involved a petition for post-conviction relief focusing on the word “innocent” as used in the applicable Alaska statute. In parsing that term, however, the Alaska Court of Appeals included a lengthy discussion of the actual innocence requirement from malpractice law—principally Shaw v. State, Dept. of Administration, 861 P.2d 566 (Alaska 1993). Marino notes that under Shaw a criminal defendant must first obtain post-conviction relief as a predicate to a subsequent malpractice claim and must also prove that they would have been found innocent of the charges. Marino also notes that under Shaw a defendant in a malpractice case can raise an affirmative defense that the plaintiff was guilty of the charges involved. While Marino doesn’t add to this body of law in Alaska, it offers a succinct contemporary summary.
Moore-Reed v. Griffin, 374 Or. 596, __ P.3d __ (2025), by contrast, creates a wrinkle to Oregon’s approach that is difficult to predict where it will lead. Under Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993), Oregon had followed a path similar to Washington’s approach in Ang. Moore-Reed involved an unusual situation where a murder charge had been dismissed but the plaintiff had been convicted of manslaughter in the alternative. The plaintiff argued that she was pursuing her malpractice claim based on her former lawyer’s handling of the murder charge that was dismissed rather than the manslaughter charge for which she was ultimately convicted. The Oregon Supreme Court agreed—effectively sidestepping Stevens without overruling it. The Oregon Supreme Court also noted that the plaintiff claimed damages—such as emotional distress—that she alleged were independent of the conviction. While the Oregon Supreme Court predicted that this latter situation would arise “infrequently,” it remains to be seen if Moore-Reed is a narrow exception to Stevens or in practice becomes the proverbial exception that swallows the rule.
