by Christopher Graham and Joseph Kelly

Fink v. Banks, 2013 IL App (1st) 122177 (Sep. 11, 2013)

Banks, an Illinois lawyer, represented Fink in an intentional homicide case in Wisconsin with the assistance of local counsel. Fink was convicted and and sentenced to 10 years in prison with 6 years probation.

Fink’s conviction was later vacated for ineffective assistance of counsel (Banks). A new trial was ordered and Finks was convicted of a lesser charge — second degree recklessly endangering safety — and he received a stayed sentence of five years plus three years probation.

Finks sued Banks for legal malpractice in Illinois. Banks successfully moved to dismiss the complaint arguing that Finks’ second conviction prevents him from establishing his actual innocence, which is a condition precedent to a criminal legal malpractice claim in Illinois.

The court noted that under Illinois law “a criminal defendant must establish his or her actual innocence before being able to recover for the criminal attorney’s alleged malpractice.”

Fink argued the State of Wisconsin’s decision to only charge him with a lesser offense proves his actual innocence on the intentional homicide charge. The court rejected this argument stating that actual innocence means “total vindication” or “exoneration.”

Here, Fink didn’t plead or prove he was actually innocent of the charge for which he was originally convicted. Fink argued his conviction should be reversed because of ineffective assistance of counsel — not because of actual innocence.

The court concluded “Fink’s failure to prove he is actually innocent of attempted first degree intentional homicide or any lesser included offenses dooms his legal malpractice claim.

Tags: Illinois, legal malpractice, ineffective assistance of counsel, actual innocence