Shepherd v. Mitchell

Justices Bridges, Lang-Miers, and Schenck (Opinion)

Shepherd was convicted of kidnapping and sexual assault. His family later hired Mitchell to pursue habeas corpus relief. When Mitchell failed to file the habeas application, Shepherd sued for legal malpractice. Mitchell responded with a motion for summary judgment, relying solely on Peeler v. Hughes & Luce, 909 S.W.2d 494 (1995), in which a divided Supreme Court of Texas held that a person who has been convicted of a crime cannot sue his criminal defense attorney for legal malpractice “without first establishing that [he] has been exonerated by direct appeal, post-conviction relief, or otherwise.” The trial court granted summary judgment to Mitchell, and the Dallas Court of Appeals affirmed. In so doing, the Dallas Court joined several other courts of appeals that have held the Peeler doctrine applicable to post-conviction proceedings, such as applications for habeas relief. The Court also rejected Shepherd’s argument that Peeler governed only cases in which the client had pleaded guilty (as Peeler had), holding instead that it applied to all convicted persons.

At one point in the opinion, the appeals court described the Peeler case as “mak[ing] clear that a person convicted of a crime cannot pursue a malpractice claim against his attorney unless he has established his innocence ….” In those states that have adopted a rule like that in Peeler, the question of what a convicted person must prove at the threshold—actual innocence or merely reversal or vacation of his conviction—has become a hotly contested issue. But it does not appear the Dallas Court was wading into that controversy. Elsewhere, the Court twice described the Peeler rule as requiring only that the client first show he had been “exonerated on direct appeal, though post-conviction relief, or otherwise” before pursuing a legal malpractice claim against his attorney. The Court’s reference to “innocence,” therefore, is likely best understood to mean legal innocence—exoneration—rather than actual innocence.

With his partner, Tim Gavin, this author recently presented a webinar entitled, “Exoneration as a Prerequisite to a Criminal Defendant’s Legal Malpractice Claim,” discussing Peeler, its origins and applicability, the approaches taken by other jurisdictions, and potential developments in the rule in Texas and elsewhere. The PowerPoint for that webinar can be viewed here. The webinar itself, which was approved for one hour of Texas CLE ethics credit, can be accessed and viewed in its entirety at this link.