In Peeler v. Hughes and Luce the Texas Supreme Court held that a convicted criminal defendant’s crime is the sole proximate cause of any consequences of that crime, so that a criminal-defense lawyer cannot be sued for malpractice “without first establishing that she has been exonerated by direct appeal, post-conviction relief, or otherwise.”

Does “exonerated” in this context mean “proven innocent,” or just “unconvicted”? It must mean the latter because the lack of a criminal conviction is the lack of proof of guilt, so that a person whose conviction has been vacated is not as a matter of law barred from suing his lawyer.

So. 33.021(b). Held unconstitutional last week. A bunch of people are still in prison for violating it. More are on probation or parole, or have completed their probation or parole. All are required to register as sex offenders.

One theory under which all of those convictions under the unconstitutional statute might be vacated is that the trial lawyers who failed to argue that the statute was unconstitutional were ineffective. ((Why might this argument be necessary? I’ll discuss that tomorrow.))

If a court finds, on habeas, that the trial lawyer was ineffective and vacates the client’s conviction, might the client successfully sue the trial lawyer for malpractice? If the lawyer’s performance was deficient and it harmed the client, what else needs to be proven to show negligence?

The statute of limitations for a legal-malpractice suit is two years, but the discovery rule might start the clock running only when the lawyer’s error became discoverable—October 30, 2013.

There are policy reasons, which I discuss here, for lawyers of exonerated clients not to be held liable for their clients’ convictions. If a client suffering the consequences of a 33.021(b) conviction is given the choice between being able to sue his lawyer for money on the one hand, and having his lawyer’s cooperation on the other, he ought to choose the latter. For while clients should be able to rely on their lawyers to tell the truth in habeas proceedings regardless of the financial stakes, the sad truth is that lawyers facing bankruptcy are more likely to “remember” things under oath that will preserve their assets at the cost of their clients’ freedom—”strategic” reasons for decisions that were in fact the product only of a lack of imagination.

A defendant should not have to prove his lawyer ineffective in order to get relief from his conviction for a void statute. But if he does have to, he also ought to be able to count on his lawyer to be candid about the reasons for not challenging the statute—candor that would be more likely if the lawyer had no financial stake in seeing the client remain a convict.