Levine v. Kling - 123 F.3d 580 (7th Cir. 1997)

Rule:

The only way in which a criminal defendant could establish injury in a case of malpractice against his defense counsel would be by showing that competent counsel would have obtained an acquittal for him.

Facts:

Appellant was convicted of using interstate commerce to commit murder for hire, in violation of 18 U.S.C.S. § 1958(a). Appellant's conviction was upheld on appeal, and he brought a claim for malpractice against appellee, his court-appointed appellate counsel, for damages. The lower court dismissed the suit for failure to state a claim. Appellant challenged the decision. 

Issue:

Will a suit for legal malpractice, committed in the defense of a criminal case, lie if the plaintiff cannot establish that he was innocent of the crime with which he was charged? 

Answer:

No.

Conclusion:

The court affirmed the decision by the lower court and held that the only way in which appellant could establish injury in a case of malpractice against his appellate counsel was by showing that competent counsel would have obtained an acquittal.