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  • October 25, 2021

    Convicted Defendant Can Sue Defense Counsel for Legal Malpractice

    A man convicted on four felonies, two dismissed post-conviction on claims of ineffective assistance of counsel, can now pursue legal malpractice claims against his former defense lawyer for negligence as to two of the charges.

    Jeff M. Brown

    Wisconsin Supreme Court

    Oct. 25, 2021 – A man convicted on four felonies, two dismissed post-conviction on claims of ineffective assistance of counsel, can now pursue legal malpractice claims against his former defense lawyer for negligence as to two of the charges.

    Jama Jama can pursue the civil malpractice action even though he claims he can show actual innocence as to some, but not all, of the criminal charges brought against him because of the Wisconsin Supreme Court’s recent 3-3 per curiam decision.

    The decision affirmed the Wisconsin Court of Appeals decision in Jama v. Gonzalez, 2021 WI App 3 (Dec. 10, 2020). Justice Jill Karofsky did not participate, which led to an equally divided supreme court and its affirmation without addressing the merits.

    Criminal Case

    Jama was convicted of two sexual assault felonies and two counts of felony burglary in Dane County Circuit Court. The original charges against Jama included a theft charge.

    Before trial, Jama told his defense counsel that he’d committed theft but had not committed any burglary or sexual assault.

    After his conviction, a different lawyer filed a motion for post-conviction relief on Jama’s behalf. The basis for the requested relief was ineffective assistance of counsel.

    The circuit court conducted a Machner hearing and vacated each of the four convictions against Jama, finding that Jama’s defense counsel intentionally did not investigate the facts of the case. The court also found that defense counsel had intentionally declined to include Jama’s version of events in his theory of the case.

    The state then moved to dismiss the charges against Jama, with the exception of a misdemeanor theft charge. The state issued a new charge of misdemeanor resisting or obstructing an officer. Jama pled guilty to both charges. He was sentenced to nine months in jail with credit for time served.​

    Actual Innocence

    Jama sued his defense counsel, Jason Gonzalez, for legal malpractice. He claimed that Gonzalez failed to meet with him until the third day of the trial, after both the prosecution and defense had rested its case. Jama also claimed that Gonzalez failed to ask him for details about the case until just before sentencing.

    In his complaint, Jama claimed that he’d suffered damages that included the loss of his liberty and freedom by being locked up in prison for two-and-a-half years while his post-conviction filing inched its way through the court system.

    Jama claimed additional damages. He’d been required to complete an alcohol and drug assessment, remain sober, stay out of taverns, report for the sex offender registry for life, and steer clear of State Street in Madison for six years.

    Gonzalez moved to dismiss Jama’s lawsuit. Even if Jama’s claims were true, Gonzalez asserted that precedent prohibited Jama’s suit because he’d pled guilty to the theft charge after his convictions were vacated.

    In Hicks v. Nunnery[1], the Wisconsin Court of Appeals employed a five-part public policy analysis – borrowed from a California Supreme Court decision[2] – to hold that a former criminal defendant suing his or her trial counsel for malpractice must prove actual innocence on each of the charges originally filed against him or her.

    Like Jama, the criminal defendant in Hicks had proclaimed his innocence on the charges filed against him. Like Jama, Hicks obtained reversal of his convictions on those charges on appeal, on grounds of ineffective assistance of counsel.

    But because Hicks had not proved to the jury in the legal malpractice case that he was actually innocent on each of the charges initially filed against him, the court of appeals remanded the case for a new trial.

    In Tallmadge v. Boyle[3] a criminal defendant sued his lawyer for malpractice after the lawyer missed the deadline for filing a writ of habeas corpus. Tallmadge had been convicted of 15 counts of sexual assault and sentenced to 265 years in prison.

    Citing Hicks, the court of appeals upheld the trial court’s dismissal of Tallmadge’s malpractice suit. The court held that a criminal defendant seeking to sue his or her lawyer for malpractice must prove that but for the lawyer’s alleged malpractice, the criminal defendant would be free. Additionally, that court stated that Tallmadge would have to prove to a jury that he was innocent of each of the 15 counts of sexual assault.

    All or Some?

    In Jama, the court of appeals distinguished Hicks. The issue of whether a criminal defendant seeking to sue his or her lawyer for malpractice must prove actual innocence on all charges or only some of them was not before the court in Hicks, because Hicks claimed he was innocent on all the charges.

    Moreover, the court held, allowing Jama’s suit to proceed wouldn’t violate any of the values embodied in the five-part public policy analysis employed by the court in Hicks when it adopted the actual innocence rule.

    “The Hicks court stressed that it was adopting the actual innocence rule because ‘as a matter of public policy, persons who actually commit the criminal offenses for which they are convicted should not be permitted to recover damages for legal malpractice from their former defense attorneys,’” wrote Judge Joanne Kloppenburg for a three-judge panel. “That public policy is not served when a person did not actually commit the criminal offenses that are the subject of the malpractice action.”

    Jama would not profit or escape punishment for the two charges he pled guilty to if his malpractice lawsuit were allowed to proceed, Kloppenburg wrote. But if the lawsuit were dismissed, Jama would be denied the opportunity to seek redress for the damages allegedly caused by Gonzalez’s negligence with regard to the vacated convictions.

    Nothing in Tallmadge, which followed the analysis established in Hicks, warranted a different conclusion, Kloppenburg wrote.

    “Thus, it appears that the Tallmadge court approached the case as if all fifteen convictions were both the subject of the malpractice action as well as the subject of Tallmadge’s unsupported assertion of innocence, despite a lack of clarity of this and other issues as summarized in the case.”

    “Split Innocence”

    The Wisconsin Supreme Court’s 2020 decision in Skindzelewski v. Smith[4] did not require dismissal of Jama’s suit either, the court held.

    In Skindzelewski, the supreme court invoked the actual innocence rule established in Hicks to bar a legal malpractice suit by a criminal defendant. The defendant conceded his guilt on a charge but argued for an exception to the actual innocence rule because his lawyer was negligent in failing to raise a statute of limitations defense. The court held that “even if an attorney’s negligence harms a defendant by adversely affecting the outcome of the case, attorney error does not negate a guilty defendant’s culpability.”

    But Judge Kloppenburg, in Jama, said the criminal defendant in Skindzelewski was pressing a claim based on a legal error that would have prevented him from being convicted despite the fact he was guilty. Jama, by contrast, claimed that the injury he sought to redress in his malpractice claim was the result of a legal error that led his conviction on charges that were later dismissed, proving his innocence.

    Additionally, in Skindzelewski, the supreme court’s discussion of the five-factor Hicks analysis was suffused with discussion of actual guilt, “culpable behavior,” and “the guilty” – signposts on the decision’s path to a conclusion that a guilty criminal defendant should not be given the opportunity to profit from his criminality by being allowed to press a legal malpractice suit against his trial counsel.

    Jama was seeking no such profit, Judge Kloppen​burg wrote. Rather, he “seeks damages for injury caused by Gonzalez’s legal representation regarding offenses that Jama has always asserted he did not commit.”

    Gonzalez argued that Hicks foreclosed any legal malpractice claim by a plaintiff who has pled guilty. Not so, Kloppenburg wrote, because Jama was claiming that Gonzalez was negligent in representing him only on the two sexual assault convictions that were later vacated, and not the theft charge to which he pled guilty.

    Gonzalez also argued that Tallmadge required Jama to prove that he was innocent of all the charges of which he was convicted. Jama couldn’t do that, Gonzalez argued, because he pled guilty to theft.

    But Tallmadge didn’t involve the issue of “split innocence,” Judge Kloppenburg noted. In Tallmadge, the court of appeals stated that the malpractice plaintiff had neither demonstrated that his lawyer could challenge any of his 15 convictions nor that he was innocent of any of the charges that led to those convictions.


    [1] 2002 WI App 87, 253 Wis. 2d 721, 643 N.W. 809.

    [2]Wiley v. County of San Diego, 966 P.2d 983 (Cal. 1998).

    [3] 2007 WI App 47, 300 Wis. 2d 510, 730 N.W. 2d 173.

    [4] 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575.

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