March 31, 2011
JOSE HERRERA-CORRAL, MARIBEL HERRERA
and EDUARDO HERRERA,
LAWRENCE H. HYMAN,
Appeal from the
Circuit Court of
No. 08 L 009003
Elizabeth M. Budzinski,
PRESIDING JUSTICE HALL delivered the judgment of the court
Justices Hoffman and Rochford concurred in the judgment and
The plaintiffs, Jose Herrera-Corral, his wife, Maribel
Herrera, and their son, Eduardo Herrera, (collectively, Mr.
Herrera-Corral), appeal from an order of the circuit court of
Cook County dismissing their complaint for legal malpractice
against the defendant, Lawrence H. Hyman (Mr. Hyman).
issue raised on appeal is whether the circuit court erred in
dismissing the complaint.
I. Federal Court Proceedings
In 2002, Mr. Herrera-Corral and his father-in-law, Fidel
Robeles-Ortega, entered pleas of guilty in federal court to
conspiring to possess cocaine with intent to distribute.
plea agreements reserved the right to appeal the denial of their
joint motion to suppress.
At the time of the entry of the plea
agreement, Mr. Hyman represented Mr. Herrera-Corral; Mr. RobelesOrtega was represented by different counsel.
appealed; the plaintiff did not.
While Mr. Robeles-Ortega's appeal was pending, Mr. HerreraCorral filed a federal habeas corpus petition alleging, inter
alia, that Mr. Hyman's failure to file an appeal and failure to
remain available to him during the 10 days to file an appeal
constituted ineffective assistance of counsel.
court denied the petition, but the court of appeals remanded the
case, ordering that the petition be granted.
Corral v. United
States, 498 F.3d 470 (7th Cir. 2007).
Initially, the court of appeals noted that it had ruled in
Mr. Robeles-Ortega's appeal that the suppression motion should
have been granted.
See United States v. Robeles-Ortega, 348 F.3d
679 (7th Cir. 2003).
released from prison.
As a result, Mr. Robeles-Ortega
Corral, 498 F.3d at 471.
The court found
that Mr. Hyman's failure to remain available to Mr. HerreraCorral during the 10 days in which the notice of appeal was
required to be filed constituted ineffective assistance of
As a result, Mr. Herrera-Corral "[was] entitled to an
Corral, 498 F.3d at 475.
The case was remanded to the
On October 12, 2007, the district court
dismissed the indictment against Mr. Herrera-Corral, vacated his
sentence and ordered him released from custody.
II. Cook County Circuit Court Proceedings
On August 14, 2008, Mr. Herrera-Corral filed a multi-count
complaint against Mr. Hyman, alleging legal malpractice, breach
of fiduciary duty, breach of contract and loss of consortium, all
stemming from Mr. Hyman's ineffective assistance of counsel.1
Subsequently, he filed an amended complaint alleging the same
causes of action.
Mr. Hyman filed a combined motion to dismiss
pursuant to sections 2-615 (failure to state a cause of action)
and 2-619 (a)(5) (complaint filed untimely) of the Code of Civil
Procedure (the Code).
735 ILCS 5/2-615, 2-619(5) (West 2008)).
On October 13, 2009, the circuit court dismissed the amended
complaint with prejudice.
This timely appeal followed.
Mr. Herrera-Corral raises several arguments in support of
his contention that the circuit court erred in dismissing his
As we conclude that the amended complaint was
properly dismissed pursuant to section 2-615 for failing to state
a cause of action, we need not address the remaining arguments
raised by Mr. Herrera-Corral.
Mr. Herrera-Corral also alleged that Mr. Hyman breached his
fiduciary duty to him by operating under a conflict of interest.
The court of appeals did not reach that claim, but stated that
Mr. Herrera-Corral would not be able to establish that the
presumed conflict adversely affected his representation.
498 F.3d 470.
I. Standard of Review
We apply the de novo standard of review to the circuit
court's ruling on dismissal pursuant to section 2-615 of the Code
(735 ILCS 5/2-615, 2-619 (West 2008)).
See R&B Kapital, LLC v.
North Shore Community Bank & Trust Co., 358 Ill. App. 3d 912,
920, 832 N.E.2d 246 (2005).
A section 2-615 motion to dismiss challenges the legal
sufficiency of a complaint.
All well-pleaded facts alleged in
the complaint are taken as true.
3d at 920.
R&B Kapital, LLC, 358 Ill. App.
" 'On review of a section 2-615 dismissal, the
reviewing court must determine whether the allegations of the
complaint, when interpreted in a light most favorable to the
plaintiff, sufficiently set forth a cause of action on which
relief may be granted.' "
R&B Kapital, LLC, 358 Ill. App. 3d at
920 (quoting Carroll v. Faust, 311 Ill. App. 3d 679, 684, 725
N.E.2d 764 (2000)).
A dismissal should be granted only where the
plaintiff can prove no set of facts to support the cause of
R&B Kapital, LLC, 358 Ill. App. 3d at 920.
A cause of action for legal malpractice consists of the
following elements: (1) an attorney-client relationship; (2) a
duty arising out of that relationship; (3) a breach of that duty;
(4) causation; and (5) actual damages.
Griffin v. Goldenhersh,
323 Ill. App. 3d 398, 404, 752 N.E.2d 1232 (2001).
Where a legal
malpractice case arises from a criminal conviction, the client
must prove the additional element of his or her actual innocence
of the criminal charges.
Moore v. Owens, 298 Ill. App. 3d 672,
674, 698 N.E.2d 707 (1998); see Winniczek v. Nagelberg, 394 F.3d
505, 507 (7th Cir. 2005) (collecting Illinois cases).
Illinois law, where a plaintiff does not claim to be innocent of
the crime for which he was convicted, he cannot bring a suit for
Winniczek, 394 F.3d at 507.
Mr. Herrera-Corral devotes a large part of his argument to
the issue of when his cause of action for legal malpractice
However, his legal malpractice claim never accrued in
this case because he did not and could not plead and prove that
he was actually innocent of the drug conspiracy charge to which
he pleaded guilty.
The dismissal of the indictment in this case did not
constitute a finding of Mr. Herrera-Corral's guilt or innocence
of the charge in this case.
The court of appeals merely
determined that, because he was denied the effective assistance
of counsel, Mr. Herrera-Corral was entitled to an appeal of the
On remand, the district court dismissed the
indictment and vacated his sentence.
An acquittal because
illegally seized evidence was used against a defendant is
unrelated to innocence.
Winniczek, 394 F.3d at 508.
Mr. Herrera-Corral's reliance on Griffin is misplaced.
Griffin dealt with when a cause of action for legal malpractice
arising out of a criminal case accrued.
Contrary to Mr. Herrera-
Corral's argument, the dispositive issue in this case is not when
his legal malpractice case accrued, but if it accrued at all
where he was unable to plead and prove his actual innocence of
the drug conspiracy charge.
We also reject Mr. Herrera-Corral's contention that the
amended complaint alleged his "innocence" sufficiently to satisfy
the public policy of Illinois.
See Paulsen v. Cochran, 356 Ill.
App. 3d 354, 359, 826 N.E.2d 526 (2005) (a criminal defendant
must meet a different standard than a civil litigant to eliminate
the possibility that someone found guilty would profit from his
In support of his contention, Mr. Herrera-
Corral cites United States v. MacDonald, 456 U.S. 1 (1982).
In MacDonald, the United States Supreme Court addressed
whether the defendant's speedy trial rights were violated given
the delay between the dismissal of murder charges by the military
and his indictment by the government on the same charges.
Herrera-Corral relies on the Court's statement that once
indictments are dismissed, an individual was legally and
constitutionally in the same posture as though no charges had
However, the Court then continued as follows:
"[the defendant] was free to go about his affairs, to practice
his profession, and to continue with his life."
U.S. at 10.
The Court did not hold that the dismissal of an
indictment automatically rendered a defendant innocent of the
charge or charges.
See also Moore, 298 Ill. App. 3d at 675
(acquittal upon retrial alone will not suffice as proof of
innocence; the plaintiff must prove that he was actually
Thus, the allegation in the amended complaint that
the indictment against him had been dismissed did not
sufficiently plead "actual innocence" for purposes of Mr.
Herrera-Corral's legal malpractice claim.
Mr. Herrera-Corral then requests that this court recognize
an exception to the actual innocence rule, where the alleged
malpractice did not result in a conviction but rather, the loss
of the benefit of the bargain.
In this case, Mr. Herrera-Corral
points out that he lost the right to appeal the denial of the
motion to suppress, a benefit he achieved in pleading guilty.
An exception to the actual innocence rule was recognized in
Morris v. Margulis, 307 Ill. App. 3d 1024, 718 N.E.2d 709 (1999),
rev'd on other grounds, 197 Ill. 2d 28, 754 N.E.2d 314 (2001).
In that case, the appellate court held that the actual innocence
rule did not apply to a claim for breach of fiduciary duty, where
it was alleged that a criminal attorney intentionally worked to
secure his client's conviction.
Morris, 307 Ill. App. 3d at
The court determined that the case did not present a
traditional legal malpractice claim and therefore did not present
an opportunity to reconsider the decision in Moore.
Ill. App. 3d at 1039.
This court has previously rejected the opportunity to create
another exception to the actual innocence rule.
In Paulsen, the
client filed a legal malpractice suit against his attorney to
challenge the sentence he received pursuant to a plea agreement.
Paulsen, 356 Ill. App. 3d at 364.
On review, we observed that
since the decision in Morris, Illinois courts and the Seventh
Circuit, when applying Illinois law, had reaffirmed that proof of
actual innocence was needed to state a cause of action for legal
malpractice against a criminal defense attorney.
Ill. App. 3d at 360.
The out-of-state cases relied on by the
client were not persuasive as those states had not adopted the
actual innocence rule.
Paulsen, 356 Ill. App. 3d at 363.
Mr. Herrera-Corral relies on Hilario v. Reardon, 960 A.2d
337 (N.H. 2008).
Like Illinois, the New Hampshire courts have
adopted the actual innocence rule.
In that case, Mr. Hilario
pleaded guilty and agreed to cooperate in other investigations in
exchange for suspension of a portion of his sentence.
court denied Mr. Hilario's petition for suspension of his
sentence, finding that he breached the plea agreement when his
attorney later moved to withdraw the guilty plea.
court held that the actual innocence rule did not apply where the
alleged acts of malpractice did not challenge the convictions,
and there was no argument that, if the attorney had acted
differently, there would have been a different result.
960 A.2d at 345.
Nonetheless, the court in Hilario recognized that, in cases
to which the actual innocence rule is applicable, "courts are
generally concerned with malpractice actions that, even if they
do not directly challenge the underlying conviction, tend to
undermine or indirectly challenge it."
Hilario, 960 A.2d at 343.
Mr. Herrera-Corral's legal malpractice claim indirectly
challenged his conviction in that, even though he had pleaded
guilty, were his appeal to be successful, he would have been
acquitted and released.
As we noted above, an acquittal based on
the exclusion of evidence is not related to innocence.
We find nothing in Hilario to persuade us to abandon the
actual innocence rule in a legal malpractice suit arising from a
Therefore, we will continue to adhere to the rule
unless directed otherwise by a decision of our supreme court.
We conclude that Mr. Herrera-Corral cannot plead his actual
innocence of the drug conspiracy charge.
Therefore, he cannot
state a cause of action in tort for legal malpractice arising
from a criminal case.
Moreover, his inability to plead actual
innocence also precludes his causes of action for breach of
fiduciary duty and breach of contract as those claims arose from
the same acts of legal malpractice as did the tort claim. Compare
Winniczek, 394 F.3d 505 (breach of contract claim involved a fee
dispute, not incompetent representation); Morris, 307 Ill. App.
3d 1024 (breach of fiduciary duty involved intentional wrongdoing
by the attorney and was not a traditional legal malpractice
The dismissal of the amended complaint for failure to state
a cause of action was correct.
Deciding this case as we do, we
need not address the loss of consortium claims of Mrs. Herrera
and Eduardo Herrera, as those claims were dependent on the
viability of the legal malpractice cause of action.
For all of the foregoing reasons, the judgment of the
circuit court is affirmed.