Fink v. Banks
996 N.E.2d 169
Ill. App. Ct.2013Background
- Michael Fink was tried in Wood County, Wisconsin for attempted first-degree intentional homicide (shooting his girlfriend); an Illinois attorney, Sheldon Banks, represented him with local counsel; a jury convicted Fink and he was sentenced to prison.
- Fink’s conviction was vacated on postconviction review in Wisconsin on the ground of ineffective assistance of counsel; certain statements/evidence were suppressed and a new trial was ordered.
- Wisconsin refiled a lesser-included charge (first-degree recklessly endangering safety); after a bench trial Fink was convicted of second-degree recklessly endangering safety and received probation (stayed sentence).
- Fink sued Banks in Cook County, Illinois, alleging (Count I) negligent criminal representation in the original trial and (Count II) breach of fiduciary duty for failure to refund fees for an expert never retained.
- Banks moved to dismiss under 735 ILCS 5/2-619, arguing that a plaintiff in a criminal legal malpractice action must prove actual innocence and Fink’s later conviction on a lesser offense precludes that; Banks also asserted statute-of-limitations/repose defenses as to Count II.
- The trial court granted Banks’s motion and denied Fink’s motion for partial summary judgment; this appeal challenges the dismissal of the negligence claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fink may proceed on a legal malpractice claim without proving actual innocence of the original charge | Fink argued he can show actual innocence of attempted homicide; the vacatur of his conviction and subsequent charging on a lesser offense show he is not guilty of the original charge | Banks argued Illinois requires proof of actual innocence for criminal malpractice and Fink’s conviction on a lesser offense prevents proving actual innocence of the charged or related offenses | Court held plaintiff must prove actual innocence; vacatur for ineffective assistance is not exoneration and conviction on lesser offense precludes actual innocence, so dismissal affirmed |
Key Cases Cited
- Paulsen v. Cochran, 356 Ill. App. 3d 354 (1998) (criminal-malpractice plaintiffs must prove actual innocence; vacatur alone insufficient)
- Moore v. Owens, 298 Ill. App. 3d 672 (1998) (acquittal on retrial does not necessarily establish innocence for malpractice purposes)
- Herrera-Corral v. Hyman, 408 Ill. App. 3d 672 (2011) (vacatur/dismissal based on denial of counsel does not equate to a finding of innocence)
- People v. Collier, 387 Ill. App. 3d 630 (2008) (defines actual innocence as requiring total vindication or exoneration)