Court allows criminal accused to sue his attorney for malpractice after receiving inadequate representation

After being convicted of criminal sexual conduct, but then achieving exoneration on appeal, Jackob Trakhtenberg sued his attorney, Deborah McKelvy, for malpractice.  His claim was summarily dismissed by the trial judge, however, after the judge concluded that his attorney's tactical decisions could not be the basis for a lawsuit--even if they denied the man his Constitutionql right to effective legal representation.

The criminal charges against the plaintiff arose out of allegations that he improperly touched his daughter's genitalia.  They were lodged against him during an acrimonious custody dispute and were made the subject of a civil suit brought by his ex-wife on behalf of the daughter.  The latter claim resulted in a verdict in the man's favor, but he was convicted of CSC in the criminal action. (Interestingly, he was found guilty "beyond a reasonable doubt" of the criminal touching, but the civil jury determined that the preponderence of evidence did not support the claim.)

Trakhtenberg appealed his criminal conviction and ultimately the Michgian Supreme Court ruled that his attorney in the criminal action had not adequately represented him.  He was granted a new trial because counsel had not adequately investigated the circumstances of the case or adequately cross-examined his ex-wife about her claims. On the same basis, the high court reversed the summary disposition that had been granted to Trakhtenberg's lawyer in the civil action and remanded his appeal.

The Court of Appeals concluded that since the gravamen of Trakhtenberg's malpractice claim went to the attorney's investigation and preparation, and did not involve professional, tactical decisions, the attorney was not cloaked with the immunity that applies to some attorney judgments.  If the plaintiff can prove that his attorney hadn't done the groundwork necessary to make reasonable, professional judgments, she can be guilty of professional malpractice.