A criminally convicted defendant may not  sue his public defender attorneys for alleged legal malpractice, according to a decision of the Alaska Supreme Court

William Foondle appeals the superior court’s dismissal of his claims for legal malpractice against the public defenders who represented him in a criminal case. In dismissing Foondle’s malpractice claims, the superior court relied on the public policy principle that precludes criminally convicted plaintiffs from civil recovery based on the alleged negligence of their former defense counsel. We hold that the superior court’s legal analysis was correct, and we affirm the judgment on that basis. We reject, as unsupported, Foondle’s argument that the dismissal violated his rights to due process and access to the courts. Finally, we affirm the award of attorney’s fees to the public defenders because they prevailed on the merits of Foondle’s claims.

Foondle was convicted of a DUI in 2007.

The alleged malpractice involved a prior DUI conviction in North Dakota.

He alleged that the judgment of conviction was void because of a “fatal flaw” in the indictment: it charged a felony, but one of the facts that made it a felony was successfully challenged and then disregarded for sentencing purposes. He alleged that he had rights to appeal his DUI conviction, the decision on post-conviction relief, and the sentencing, but he lost those rights because his attorneys failed to appeal. He claimed that his attorneys’ negligence caused him to serve a longer time in prison and triggered a revocation of his federal probation, all of which resulted in debt, lost income, lost consortium, and depression.

 The court held that actual innocence was a necessary element of such a legal malpractice claim. (Mike Frisch)