394 F.3d 505 (7th Cir. 2005), 04-2106, Winniczek v. Nagelberg

Docket Nº:04-2106.
Citation:394 F.3d 505
Party Name:Hilary Marek WINNICZEK and Danuta Winniczek, Plaintiffs-Appellants, v. Sheldon B. NAGELBERG, Defendant-Appellee.
Case Date:January 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 505

394 F.3d 505 (7th Cir. 2005)

Hilary Marek WINNICZEK and Danuta Winniczek, Plaintiffs-Appellants,


Sheldon B. NAGELBERG, Defendant-Appellee.

No. 04-2106.

United States Court of Appeals, Seventh Circuit

January 7, 2005

Argued Nov. 30, 2004

As Amended Feb. 3, 2005.

Page 506

Paul R. O'Malley (argued), O'Malley & O'Malley, Chicago, IL, for Plaintiffs-Appellants.

Richard M. Kaplan, Chip G. Schoenberger (argued), Clausen Miller, Chicago, IL, for Defendant-Appellee.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The district court dismissed for failure to state a claim a diversity suit that charges breach of contract, legal malpractice, and breach of fiduciary duty, all in violation of Illinois law. The plaintiffs are Hilary Winniczek and his wife, Danuta; the defendant is a lawyer, Sheldon Nagelberg. The complaint, our only source of facts, alleges the following. Winniczek was charged with a variety of federal criminal offenses arising from his participation in a scheme to help people obtain commercial drivers' licenses fraudulently. He hired a lawyer named Petro to represent him. Nagelberg got wind of the matter and advised the Winniczeks that Petro was inexperienced in federal criminal matters and they should fire Petro and hire him; and they did so. Nagelberg then told them that Winniczek had a good defense to

Page 507

the criminal charges but that it would cost the Winniczeks $150,000 in fees, plus $20,000 in expenses, to present the defense. They paid him the $170,000 over the course of the year preceding the scheduled date of the criminal trial. As soon as Nagelberg was fully paid, he told the Winniczeks that he wouldn't take the case to trial because Winniczek had made statements to the authorities when he was represented by Petro that scotched any defense he might have had, and as a result Winniczek had no choice but to plead guilty. Nagelberg then departed the scene and another lawyer represented Winniczek at the plea hearing. Winniczek pleaded guilty and was sentenced to 22 months in prison.

Winniczek does not claim to be innocent of the crimes for which he was convicted, and this dooms his claim for legal malpractice. (His wife, not having been represented by Nagelberg, obviously has no malpractice claim.) Under Illinois law, as that of other states, a criminal defendant cannot bring a suit for malpractice against his attorney merely upon proof that the attorney failed to meet minimum standards of professional competence and that had he done so the defendant would have been acquitted on some technicality; the defendant (that is, the malpractice plaintiff) must also prove that he was actually innocent of the crime, Kramer v. Dirksen, 296 Ill.App.3d 819, 231 Ill.Dec. 169, 695 N.E.2d 1288, 1290 (1998); Moore v. Owens, 298 Ill.App.3d 672, 232 Ill.Dec. 616, 698 N.E.2d 707, 709 (1998); Levine v. Kling, 123 F.3d 580, 581-82 (7th Cir. 1997) (Illinois law), which Winniczek cannot prove. This "actual innocence" rule presumably has an exception for the case in which, although the defendant is guilty, he received an unlawful penalty; the existence of the exception was assumed in Geddie v. St. Paul Fire & Marine Ins. Co., 354 So.2d 718, 179 (La.App.1978), and Lawson v. Nugent, 702 F.Supp. 91, 92 (D.N.J.1988), though we cannot find any case that actually discusses the question; but the exception would not be applicable to Winniczek either.

The "actual innocence" rule differs from the rule applicable to malpractice arising out of civil matters. There the only requirement is, as in all tort cases, that the plaintiff prove he was injured by the defendant's negligence. If the malpractice involved the handling of a lawsuit, all he has to prove is that he would have won had it not been for the lawyer's negligence. Cedeno v. Gumbiner, 347 Ill.App.3d 169, 282 Ill.Dec. 600, 806 N.E.2d 1188, 1192 (2004); Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 249 Ill.Dec. 303, 736 N.E.2d 145, 155 (2000); Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill.App.3d 349, 234 Ill.Dec. 612, 703 N.E.2d 473, 476-77 (1998); Mihailovich v. Laatsch, 359 F.3d 892, 904-05 (7th Cir...

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