Hinshaw reports this case:

Client may not recover fees paid to criminal defense attorney whose representation was ineffective in part 

"The Vermont Supreme Court has held that a client is not entitled to assert a breach of contract action against a criminal defense attorney to recover fees paid for ineffective representation where at least some of the representation involved the provision of valuable services. Plaintiff, a client who was charged with federal crimes, retained defendant attorney to defend the charges. The attorney performed a substantial amount of work investigating the case and preparing for trial. The client was found guilty on all six charges and sentenced to prison. The conviction was upheld on appeal but the case was remanded for recalculation of the sentence. An increased sentence resulted, and it was affirmed on appeal. The client sought postconviction relief based on ineffective assistance of counsel due to the attorney’s failure to object to a jury charge. A federal district court dismissed the complaint, but a circuit court ruled that the jury charge on a reasonable doubt was improper. The circuit court remanded for a determination of whether counsel’s representation was ineffective.

On remand, the district court found that counsel’s representation was ineffective due to his failure to object to the improper jury instruction on reasonable doubt. A new trial was granted. The client pled guilty to one count and was sentenced to the 87 months he had already served.

The client then sued the attorney alleging claims for both legal malpractice and breach of contract. The contract claim sought to obtain return of the fees plaintiff had paid to defendant for preparing the case for trial and for trying the case. The trial court granted summary judgment for the attorney on the malpractice claim, ruling that a client must establish his actual innocence of the criminal charges to be entitled to recover for malpractice. The trial court denied summary judgment on the contract claim and found for the attorney on it. The trial court held that the client could not recover the attorneys’ fees he paid the attorney under a breach of contract theory because such a claim was in reality a malpractice claim and so required the client to establish his actual innocence. As the client could not establish his actual innocence because he pled guilty to one of the charges, the trial court ruled he could not establish proximate cause. The Supreme Court affirmed but for different reasons."