IN THE SUPREME COURT OF IOWA

No. 14–1550

Filed February 5, 2016

ROBERT ALLEN BARKER,

Appellant,

vs.

DONALD H. CAPOTOSTO and THOMAS M. MAGEE,

Appellees.

Appeal from the Iowa District Court for Palo Alto County, Duane E. 

Hoffmeyer, Judge.

The plaintiff in a legal malpractice action against his former 

criminal defense attorneys appeals a district court ruling granting 

summary judgment to the defendants on the ground the plaintiff could 

not establish he was actually innocent of a crime. REVERSED AND 

REMANDED.

Ashleigh E. O’Connell Hackel (until withdrawal) and J. Campbell 

Helton of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

Alexander E. Wonio and David L. Brown of Hansen, McClintock & 

Riley, Des Moines, for appellee Thomas M. Magee.

Donald H. Capotosto, West Bend, pro se.
2

MANSFIELD, Justice.

This case asks us to determine whether a criminal defendant who 

sues his or her attorney for legal malpractice must prove actual 

innocence as a precondition to recovery. In Trobaugh v. Sondag, 668 

N.W.2d 577, 583 n.4 (Iowa 2003), we reserved judgment on this 

question.

In the present case, the plaintiff faults his former criminal defense 

attorneys for allowing him to plead guilty to a specific crime that lacked a 

factual basis. He sued the attorneys for malpractice, but the district 

court granted them summary judgment because the plaintiff could not 

show he was actually innocent of any offense that formed the basis for 

the underlying criminal case.

On our review, we decline to adopt proof of actual innocence as a 

separate prerequisite to recovery for legal malpractice against criminal 

defense attorneys. Instead, we believe judges and juries should take 

innocence or guilt into account in determining whether the traditional 

elements of a legal malpractice claim have been established. We 

therefore reverse and remand for further proceedings.

I. Background Facts and Proceedings.

In 2006, Robert Barker placed crudely worded graffiti on the wall 

of a public restroom in a park in Emmetsburg inviting young males 

interested in oral sex to contact a certain email address. In response to 

public complaints about the graffiti, law enforcement began an 

investigation. An agent of the Iowa Division of Criminal Investigation 

posed as a fifteen-year-old male named “Jayson” and established online 

contact with Barker using the email address.

Eventually, Barker made plans to meet “Jayson” for a sex act. 

When Barker appeared at the arranged location, he was arrested. The 
3

State charged Barker with attempted enticement of a minor, an 

aggravated misdemeanor, and lascivious acts with a child, a class “D”

felony. See Iowa Code § 710.10(3) (2005); id. § 709.8(3). Later, the court 

granted the State’s request to amend the second count to solicitation of a 

minor to commit a sex act, a purported class “D” felony. See id.

§ 702.17; id. § 705.1; id. § 709.4(2)(c)(4).1

On October 3, Barker entered into a written plea agreement. 

Under the plea agreement, Barker was to plead guilty to the amended 

charge of solicitation of a minor. The first count—attempted 

enticement—would be dismissed and the State would recommend a 

suspended sentence and probation with the condition that Barker 

complete sex-offender treatment through a residential treatment facility 

(RTF) in Sioux City.

During this stage of the proceedings, Barker was represented by 

Thomas Magee, whom Barker consulted concerning his decision to plead 

guilty. Thereafter, Magee closed his law office and the court allowed him

to withdraw from further representation. The district court subsequently 

appointed Donald Capotosto to represent Barker.

On December 11, Barker’s plea and sentencing hearing took place

in the Palo Alto County District Court. The terms of the plea agreement 

were put on the record. Barker gave the following statement regarding 

the offense:

1The amended count sought to charge an inchoate crime (Iowa has no general 

attempt statute) by combining Iowa Code section 705.1’s general prohibition on 

soliciting other persons to commit crimes with section 709.4(2)(c)(4)’s prohibition on 

performing a sex act with a person who is fourteen or fifteen years of age when the 

person committing the act is four or more years older. The problem with this effort, as 

became apparent years later, is that Barker wasn’t soliciting someone else to commit 

the crime of sexual abuse; he was attempting to commit that crime himself.

 
4

On August 16th I was in communication on line with 

what I presumed to be a 15-year-old male. That 15-year-old 

male had contacted me the day before after, ostensibly after 

coming across an e-mail address that I had written in a 

restroom . . . . The conversation was such that we came to 

an understanding that we would meet and possibly sexual 

activity could happen. That was the nature of the 

conversation. Obviously it was not a minor. It was a sting 

operation, and I was arrested.

The district court sentenced Barker to five-years imprisonment, 

suspended the sentence, and placed Barker on probation for the 

duration of his sentence. Additionally, in Clay County, Barker had pled 

guilty to second-degree theft, a class “D” felony, see Iowa Code 

§ 714.2(2), with the understanding that the sentence on that charge 

would run concurrently with the sentence on the solicitation of a minor 

charge.

Barker’s sentencing order for the solicitation offense prohibited 

him from engaging in unsupervised contact with minors and provided

that all internet access, including chat room use, needed to be 

preapproved by his probation officer. The order permitted Barker to 

complete outpatient sex-offender treatment through Catholic Charities 

instead of mandating commitment to the RTF but required him to seek 

an evaluation from Catholic Charities within sixty days. The order 

further provided that Barker had to register as a sex offender.

On December 29, 2006, the State filed an application for probation 

revocation based on Barker’s use of a public library computer. Barker 

was arrested and jailed. However, on January 23, 2007, the district

court denied the application and ordered Barker released, reasoning that 

there was no specific prohibition on his use of a computer, so long as it 

did not involve use of the internet or chat rooms.

On February 5, 2007, Barker received a five-year suspended 

sentence on the Clay County theft charge, to run concurrently with his 
5

sentence for solicitation of a minor. Barker was placed on probation for 

that charge as well.

On occasions in April, May, July, and September, Barker was

noncompliant with the treatment services at Catholic Charities. He was 

discharged from that program. After a home visit revealed that Barker 

was engaged in internet use and had images of young males on his 

computer, his computer was seized and in December the district court 

ordered Barker into the RTF once space became available.

In March 2008, Barker was admitted to the RTF. Barker lost 

several jobs during this time period because of unauthorized internet 

use, including the access of pornography. On July 31, Barker was 

unsuccessfully terminated from the RTF, and the State filed another 

application for revocation of his probation. Barker was jailed again at 

this time.

On October 30, the district court revoked Barker’s probation on 

the solicitation of a minor charge and sentenced him to imprisonment for 

a term not to exceed five years with credit for time served. Barker was 

transferred to the Mount Pleasant Correctional Facility.

On November 14, 2008, a probation revocation proceeding was

commenced in Clay County on Barker’s theft conviction. This proceeding 

was dismissed on March 2, 2009, due to the fact that Barker was already 

in prison based on the conviction for solicitation of a minor.

On October 1, Barker filed an application for postconviction relief 

from his conviction for solicitation of a minor. His application alleged 

that his prior counsel had committed ineffective assistance of counsel 

because there was no factual basis for his guilty plea to solicitation of a 

minor to engage in a sex act. In a written ruling, the district court 

granted the application on February 28, 2011. The court reasoned that 
6

to commit the offense, Barker had to have solicited someone else to 

commit an actual crime, and he had not done so. The court explained, 

“If such [sex] act occurred, the adult would be committing the crime and 

the child would be a victim. Thus, the adult cannot be considered to 

have asked the fourteen or fifteen year old to commit a felony crime.”

The court then concluded,

By advising and permitting Barker to plead guilty to a crime 

for which he could not give a factual basis, defendant’s 

counsel failed to perform an essential duty and the prejudice 

to defendant was inherent in the conviction entered upon his 

defective plea.

The court vacated Barker’s conviction and sentence.

Barker never appealed or sought postconviction relief from his 

second-degree theft conviction in Clay County. Also, Barker does not 

dispute that his conduct in Palo Alto County amounted to attempted 

enticement of a child in violation of Iowa Code section 710.10(3), the first 

count charged in the original trial information. 

On March 1, 2013, Barker filed a petition alleging that Magee and 

Capotosto committed legal malpractice by advising him to plead guilty to 

an offense for which there was no factual basis. Thereafter, Capotosto 

filed a motion for summary judgment, which Magee joined. They argued 

Barker could not establish that he was factually innocent in the 

underlying criminal case. They urged that the Iowa courts should

require a plaintiff to prove actual innocence in order to maintain a suit 

for legal malpractice occurring in the course of criminal representation. 

They also argued that, as a matter of law, their alleged malpractice did 

not cause Barker’s damages.

The district court granted the motion on the first ground, stating,

[T]he Court finds actual innocence must be established in a 

criminal malpractice action. Additionally, the Court finds 
7

actual innocence requires innocence of all transactionally 

related offenses. Plaintiff does not dispute that he attempted 

to entice a person whom he believed to be under the age of 

16 with the intent to commit an illegal act. Plaintiff admits 

that what he did do was engage in a telephone conversation 

with a person he believed to be fifteen years old for the 

purpose of arranging a meeting leading to a sexual 

encounter and that this meets the definition of attempted 

enticement of a minor for an illegal act, an aggravated 

misdemeanor, under Iowa Code Section 710.10(3) (2005), 

which was charged in the under[ly]ing criminal case 

FECR04088. Plaintiff is unable to establish actual 

innocence of all transactionally related offenses. Therefore, 

the Court finds summary judgment in favor of Defendants is 

appropriate.

Barker appealed, and we retained the appeal.

II. Standard of Review.

We review grants of summary judgment for correction of errors at 

law. Vossoughi v. Polaschek, 859 N.W.2d 643, 649 (Iowa 2015). 

“Summary judgment is appropriate when there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of 

law.” Amish Connection, Inc. v. State Farm Fire & Cas. Co., 861 N.W.2d 

230, 235 (Iowa 2015). We view the facts in the light most favorable to 

the nonmoving party. Veatch v. City of Waverly, 858 N.W.2d 1, 6 (Iowa 

2015).

III. Analysis.

A party seeking to establish a prima facie claim of legal malpractice 

must show the following: (1) a duty arising from the established existence 

of an attorney–client relationship; (2) the attorney breached that duty;

(3) the attorney’s breach was the proximate cause of injury to the client;

and (4) the client suffered actual damage, injury, or loss. Ruden v. Jenk, 

543 N.W.2d 605, 610 (Iowa 1996). Additionally, we have held that a 

criminal defendant must “achieve relief from a conviction before 
8

advancing a legal malpractice action against his former attorney.”

Trobaugh, 668 N.W.2d at 583.

In Trobaugh, we noted that some courts had also required proof of 

actual innocence before allowing recovery but declined to reach the

issue. Id. at n.4. We explained,

Both the procedural posture of this appeal and the absence 

of arguments by the parties on the issue lead us to avoid the 

question of what role, if any, the plaintiff’s guilt or innocence 

plays in advancing a claim for legal malpractice.

Id.

Barker’s case squarely presents the issue reserved in Trobaugh—

whether proof of actual innocence is required in a “criminal malpractice”

suit.2 We are not the first court to confront this question. Other

jurisdictions have addressed whether to require actual innocence in a 

criminal malpractice action. We consider three of the approaches taken 

elsewhere and their supporting reasoning.

Of those jurisdictions to have considered the issue, a majority have 

adopted an “actual innocence” requirement. See Wiley v. County of San 

Diego, 966 P.2d 983, 985, 991 (Cal. 1998) (holding that actual innocence 

is a required element of a plaintiff’s cause of action in a criminal 

malpractice action); Schreiber v. Rowe, 814 So. 2d 396, 399 (Fla. 2002)

(per curiam) (same); Glenn v. Aiken, 569 N.E.2d 783, 786 (Mass. 1991)

(same); Rodriguez v. Nielsen, 609 N.W.2d 368, 374 (Neb. 2000) (same); 

Morgano v. Smith, 879 P.2d 735, 738 (Nev. 1994) (holding that “in order 

to prevail at trial, the [criminal malpractice] plaintiff must prove actual 

2The term “criminal malpractice” has been used to describe a legal malpractice 

action brought by a former criminal defendant against his or her former criminal 

defense attorney. See, e.g., Otto M. Kaus & Ronald E. Mallen, The Misguiding Hand of 

Counsel—Reflections on “Criminal Malpractice,” 21 U.C.L.A. L. Rev. 1191, 1191 n.2 

(1974) (defining the phrase).

 
9

innocence of the underlying charge”); Mahoney v. Shaheen, Cappiello, 

Stein & Gordon, P.A., 727 A.2d 996, 998–99 (N.H. 1999) (holding that 

only clients able to prove actual innocence can challenge decisions made 

by defense counsel through malpractice actions); Carmel v. Lunney, 511 

N.E.2d 1126, 1128 (N.Y. 1987) (holding that a criminal malpractice 

plaintiff “must allege . . . innocence or a colorable claim of innocence” to 

state a cause of action); Bailey v. Tucker, 621 A.2d 108, 113 (Pa. 1993)

(“[D]efendant must prove, by a preponderance of the evidence, that he 

did not commit any unlawful acts with which he was charged as well as 

any lesser offenses included therein [to maintain criminal malpractice 

suit].”); Ang v. Martin, 114 P.3d 637, 642 (Wash. 2005) (requiring 

criminal malpractice plaintiffs to prove actual innocence by a 

preponderance of the evidence to state a cause of action); Humphries v. 

Detch, 712 S.E.2d 795, 801 (W. Va. 2011) (same); see also Lamb v. 

Manweiler, 923 P.2d 976, 979 (Idaho 1996) (noting that plaintiff did not 

dispute that in a criminal malpractice action the plaintiff “must establish 

the additional element of actual innocence of the underlying criminal 

charges”); Adkins v. Dixon, 482 S.E.2d 797, 802 (Va. 1997) (holding that 

actual guilt is a material consideration on issue of proximate cause).3

The Ang case from Washington exemplifies the reasoning of those 

courts that have adopted an actual innocence requirement. The Angs, a 

married couple who owned a medical examination company, became the 

target of a social security fraud investigation. Ang, 114 P.3d at 639. 

3Some courts have conflated the granting of postconviction relief with innocence. 

See e.g., Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995). In doing so, 

they have not distinguished between what the Washington Supreme Court termed legal 

innocence—a grant of postconviction relief—and actual innocence, a matter of factual 

proof. See Ang, 114 P.3d at 642. Because Barker has already received postconviction 

relief, and the original charges have not been pursued, only his actual, as opposed to 

legal, innocence is at issue here.

 
10

They were eventually indicted on eighteen criminal counts, including 

bank and tax fraud. Id. Their counsel attempted to negotiate a plea 

bargain, but the Angs rejected the proposed agreement. Id. The case 

went to trial, but just before the close of the prosecution’s case, the Angs’ 

attorneys recommended they accept a plea—one the Angs considered less

attractive than previous offers. Id. The Angs agreed to plead guilty to 

two counts but allegedly only after Dr. Ang was told that his wife might 

be sexually assaulted in prison. Id.

Upon retaining new counsel, the Angs successfully moved to 

withdraw their pleas. Id. The case went to trial again, and the Angs were 

acquitted of all eighteen counts. Id. The Angs then filed a legal 

malpractice action against their original attorneys. Id. The jury in the 

malpractice action was instructed that the Angs had to prove they were 

innocent of the underlying criminal charges by a preponderance of the 

evidence. Id. The Angs lost their malpractice case and assigned error to 

the instruction on appeal. Id. at 641.

The Washington Supreme Court upheld the instruction, deciding

that actual innocence—as well as relief from the underlying criminal 

charges—was a necessary component of a plaintiff’s suit for criminal 

malpractice. Id. at 643. The court noted the Angs may have been legally 

innocent, as evidenced by the successful withdrawal of their guilty pleas 

and their subsequent acquittal of all charges, but that did not 

necessarily mean they were actually innocent of the criminal conduct 

they had been accused of in the prior proceedings. Id. at 641. In the 

court’s view, actual innocence was “essential” to proving causation, both 

proximate and but-for causation. Id. at 642. Additionally, the court 

found that requiring criminal malpractice plaintiffs to prove their actual 

innocence
11

will prohibit criminals from benefiting from their own bad 

acts, maintain respect for our criminal justice systems 

procedural protections, remove the harmful chilling effect on 

the defense bar, prevent suits from criminals who may be 

guilty, [but] could have gotten a better deal, and prevent a 

flood of nuisance litigation.

Id. (quoting Falkner v. Foshaug, 29 P.3d 771, 776 (Wash Ct. App. 2001)

(footnote omitted)).

As Ang illustrates, courts adopting the actual innocence element in 

criminal malpractice actions have been motivated by public policy 

concerns. Principal among these concerns is that “it would violate public 

policy to allow a person to profit from participating in an illegal act.” 

Humphries, 712 S.E.2d at 800; see Wiley, 966 P.2d at 983 (“[P]ermitting

a convicted criminal to pursue a legal malpractice claim without 

requiring proof of innocence would allow the criminal to profit by his own 

fraud, or to take advantage of his own wrong, or to found [a] claim upon 

his iniquity, or to acquire property by his own crime.” (quoting Peeler v. 

Hughes & Luce, 909 S.W.2d 494, 497 (Tex. 1995))).

Another rationale is that actual innocence prevents the former 

criminal defendant from shifting the responsibility for his or her 

conviction. Wiley, 966 P.2d at 986. If a plaintiff committed the crimes 

he or she was accused of, then he or she “alone should bear full 

responsibility for the consequences of [his or her] acts, including 

imprisonment. Any subsequent negligent conduct by a plaintiff’s 

attorney is superseded by the greater culpability of the plaintiff’s criminal 

conduct.” Id. (quoting Shaw v. State, 861 P.2d 566, 572 (Alaska 1993)).

Also, courts have found that constitutional protections, such as 

postconviction relief for ineffectiveness of counsel, provide a sufficient 

remedy for guilty defendants. Id. at 988–89; see Bailey, 621 A.2d at 113 

(“If a person is convicted of a crime because of the inadequacy of 
12

counsel’s representation, justice is satisfied by the grant of a new trial 

. . . . [but] if an innocent person is wrongfully convicted due to the 

attorney’s dereliction, justice requires that he be compensated for the 

wrong which has occurred.”). Moreover, courts have noted a substantial 

interest in preserving the availability of representation to criminal 

defendants. Mahoney, 727 A.2d at 999. Criminal defense counsel is 

often working for reduced fees or has been appointed at public expense,

and “[t]he public has a strong interest in encouraging the representation 

of criminal defendants, particularly those who are ruled to be indigent.” 

Schreiber, 814 So. 2d at 399 (quoting Glenn, 569 N.E.2d at 788). In 

declining to require criminal malpractice plaintiffs to prove actual 

innocence, courts might be “[s]etting the standard at a lower level [which] 

may well dampen counsels’ willingness to enter the criminal defense 

arena.” Mahoney, 727 A.2d at 1000. And further, the differing burdens 

of proof in criminal and malpractice actions could create confusion for 

the jury. Wiley, 966 P.2d at 990.

Additionally, these courts commonly focus on the causation 

element of a malpractice case in their reasoning. Many of them have 

asserted in some form that the plaintiff’s criminal behavior—rather than 

the attorney’s conduct—led to the plaintiff’s predicament. See, e.g., 

Rodriguez, 609 N.W.2d at 374 (“We believe that it is the illegal conduct of 

a convicted criminal who files a malpractice claim, rather than any 

subsequent negligence of counsel, that is the cause in fact of any injuries 

flowing from the conviction.”). Judge Posner perhaps best voiced this 

consideration in Levine v. Kling, a case in which the United States Court 

of Appeals for the Seventh Circuit determined that Illinois law required a 

criminal malpractice plaintiff to establish innocence, either by 
13

postconviction relief or other means. See 123 F.3d 580, 582 (7th Cir. 

1997).

On [the plaintiff’s] view there would be cases in which a 

defendant guilty in fact of the crime with which he had been 

charged, and duly convicted and imprisoned (perhaps after a 

retrial in which he was represented by competent counsel), 

would nevertheless obtain substantial damages to 

compensate him for the loss of his liberty during the period 

of his rightful imprisonment.

Not only would this be a paradoxical result, 

depreciating and in some cases wholly offsetting the 

plaintiff’s criminal punishment, but it would be contrary to 

fundamental principles of both tort and criminal law. Tort 

law provides damages only for harms to the plaintiff’s legally

protected interests, Restatement (Second) of Torts, § 1 

comment d, § 7(1) (1965), and the liberty of a guilty criminal 

is not one of them. The guilty criminal may be able to obtain 

an acquittal if he is skillfully represented, but he has no 

right to that result . . . and the law provides no relief if the 

“right” is denied him.

Id.

Alaska has adopted a somewhat different approach. Instead of

requiring the former criminal defendant to establish actual innocence, 

this approach allows the criminal defense attorney to raise actual guilt as 

an affirmative defense to the malpractice suit. See Shaw, 861 P.2d at

572. The attorney must prove her or his former client’s guilt by a 

preponderance of the evidence, but in doing so, the attorney is not 

limited to the evidence admissible on the criminal charge. Id. at 573. In 

placing this burden on the defendant, the Alaska Supreme Court noted

the plaintiff still must obtain postconviction relief before bringing the 

malpractice claim. Id. at 572. The court also cited the similarity 

between an actual guilt defense and other affirmative defenses in tort 

such as comparative negligence and assumption of the risk. Id. at 572 

n.9.
14

As a third alternative, some courts have rejected an actual 

innocence requirement entirely. See Godby v. Whitehead, 837 N.E.2d 

146, 151 (Ind. Ct. App. 2005) (reiterating the court’s point from a prior 

case that “a criminal defendant does not have to prove his innocence 

before he files a legal malpractice claim”); Mashaney v. Bd. of Indigents’

Def. Servs., 355 P.3d 667, 687 (Kan. 2015) (rejecting the actual 

innocence rule in a jurisdiction that requires postconviction relief prior to 

filing a criminal malpractice suit); see also Mylar v. Wilkinson, 435 So. 2d 

1237, 1239 (Ala. 1983), modified in part on other grounds by Morrison v. 

Franklin, 655 So. 2d 964, 966 (Ala. 1995) (noting that “the validity of [the 

defendant’s] claim for relief in his criminal prosecution is not necessarily 

conclusive on his claim for civil damages”); Rantz v. Kaufman, 109 P.3d 

132, 136 (Colo. 2005) (refusing to adopt the “exoneration rule,” which 

would require criminal malpractice plaintiffs to obtain postconviction 

relief prior to filing suit); Jepson v. Stubbs, 555 S.W.2d 307, 313 (Mo. 

1977) (concluding that the setting aside of a judgment of conviction is 

not a condition to maintaining a suit for malpractice arising from 

criminal representation); Krahn v. Kinney, 538 N.E.2d 1058, 1061 (Ohio 

1989) (holding that the elements of proof for legal malpractice remain the 

same whether the action arises from civil or criminal representation).

The Kansas Supreme Court recently considered, and declined to 

adopt, an actual innocence requirement. See Mashaney, 355 P.3d at 

687. The case involved an individual charged with one count of 

aggravated criminal sodomy and one count of aggravated indecent 

liberties with a child. Id. at 670. After the first trial ended in a mistrial,

the individual was convicted in a second jury trial and sentenced to 442 

months in prison. Id. at 670–71. Years later, Mashaney successfully 

moved to vacate or set aside his sentence, and his case was set for a new 
15

trial. Id. at 671. At that point, the defendant agreed to enter an Alford 

plea to two counts of attempted aggravated battery and one count of 

aggravated endangerment of a child in return for the State dropping the 

original charges. Id. The court sentenced Mashaney to seventy-two 

months in prison, and he was released for time served. Id.

Mashaney subsequently filed a malpractice suit against his former 

trial counsel, his former appellate counsel, and the state board of 

indigent defense services. Id. He sought damages for the nearly eight 

years he spent in prison. Id. The court dismissed Mashaney’s claim 

against the state board and granted judgment on the pleadings to the 

attorneys. Id. On appeal, the Kansas Court of Appeals held that a 

plaintiff as a threshold matter must prove actual innocence to pursue a 

criminal malpractice action. Id. at 672.

The Kansas Supreme Court reversed. Id. at 687. First, the court 

disagreed with the broad notion that public policy supports the actual 

innocence rule. See id. at 678. It indicated that the justifications for the 

rule were too simplistic and “no match for the complexities of a case 

such as this.” Id. at 678, 687. Next, the court stated that requiring 

actual innocence produced inequitable results in that former defendants 

who received “lengthy prison sentences as a direct result of their lawyers’

negligence will be deprived of any tort remedy for that malpractice and 

some lawyers representing criminal defendants will escape liability when 

their civil counterparts would not.” Id. at 679, 687. The court added 

that actual innocence was based on a flawed conception of causation in 

tort law because if counsel “fails to demonstrate the State’s inability to 

prove guilt beyond a reasonable doubt when a competent lawyer could 

have and would have done so, the client has been legally injured by being 

convicted and imprisoned,” regardless of innocence. Id. at 684, 687. 
16

Moreover, the court found the notion that actual innocence furthers the 

availability of criminal defense representation supported by judicial 

speculation rather than empirical evidence. Id. at 685, 687.

Lastly, the Kansas Supreme Court noted that in a prior decision, it 

had adopted the “exoneration rule,” under which the criminal 

malpractice plaintiff had to obtain relief from her or his conviction before 

bringing any claim. Id. at 673–74 (discussing Canaan v. Bartee, 72 P.3d 

911 (Kan. 2003)). It indicated that this requirement effectively precluded 

the bringing of frivolous malpractice claims by criminal defendants. Id. 

at 685.

This recent Kansas decision mirrors the recommendation of the 

Restatement of the Law Governing Lawyers. Regarding actions for 

malpractice by a criminal defendant, the Restatement concludes that “it 

is not necessary to prove that the convicted defendant was in fact 

innocent,” although it notes that “most jurisdictions addressing the issue 

have stricter rules.” Restatement (Third) of the Law Governing Lawyers 

§ 53 cmt. d, at 392 (Am. Law Inst. 2000) [hereinafter Restatement]. The 

Restatement adds, 

As required by most jurisdictions addressing the issue, a 

convicted defendant seeking damages for malpractice 

causing a conviction must have had that conviction set aside 

when process for that relief on the grounds asserted in the 

malpractice action is available.

Id. Thus, this aspect of the Restatement is consistent with our holding in 

Trobaugh. See 668 N.W.2d at 583.

We often look to the Restatements for guidance. See Rohlin Constr. 

Co. v. City of Hinton, 476 N.W.2d 78, 80 (Iowa 1991) (“We often turn to 

Restatements of the Law . . . .”). We have previously relied on the 

Restatement of the Law Governing Lawyers when defining the scope of 
17

the duty of care attorneys owe their clients. See Sabin v. Ackerman, 846 

N.W.2d 835, 842 (Iowa 2014).

We find the approach taken by the Restatement and like-minded 

jurisdictions to be persuasive. The prerequisite that the malpractice 

plaintiff obtain judicial relief from her or his conviction, which the 

Restatement endorses and which we adopted in Trobaugh after 

“considering all of the issues presented and the wealth of commentary on 

this issue,” serves as an important screen against unwarranted claims 

and “preserves key principles of judicial economy and comity.” 668 

N.W.2d at 583. But we do not think an additional actual innocence 

screen is appropriate. Such a prerequisite goes beyond respecting the 

criminal process—i.e., “judicial economy and comity”—and interposes an 

additional barrier to recovery that other malpractice plaintiffs do not 

have to overcome.

Furthermore, a criminal defendant already “must prove both that 

the lawyer failed to act properly and that, but for that failure, the result 

would have been different.” Restatement § 53 cmt. d, at 392; see also 

Vossoughi, 859 N.W.2d at 649 (noting that to establish a prima facie 

claim of legal malpractice, the plaintiff must produce evidence showing 

the attorney’s breach of duty caused actual injury). Often, the innocence 

or guilt of the client will enter into the causation inquiry that is part of 

the plaintiff’s prima facie case. See Mashaney, 355 P.3d at 688 (Stegall, 

J., concurring). For example, if Barker’s counsel had refused to let him 

plead guilty to the nonexistent crime of soliciting a minor to commit a sex 

act, would the State have pursued the original charges, assuming it 

could have done so? What would have been the outcome of those 

charges? Would Barker have been incarcerated anyway? A criminal 

defendant who was factually guilty of the crime for which he or she was 
18

convicted—or at least guilty of a related crime or a crime with which he 

or she was originally charged—will likely confront significant causation 

issues in his legal malpractice action. We see no reason why such issues 

cannot be resolved, as they generally are in malpractice actions, by the 

fact finder.

Thus, we think the causation determination will frequently take 

into account the guilt or innocence of the client. And ultimately, we are 

not persuaded by the remaining public policy concerns other than 

causation. For example, while the notion that an individual should not 

“profit from participating in an illegal act” is a good general principle, 

Humphries, 712 S.E.2d at 800, it is too general to describe how our legal 

system actually operates. We do not bar criminal defendants who are 

guilty of their crimes from recovering overpayments from their criminal 

defense counsel, suing for clearly illegal searches, or suing the medical 

staff in the prison for medical malpractice. By analogy, a criminal 

defendant who is convicted of a crime due to legal malpractice, and gets 

that conviction set aside, should not be categorically barred from suing 

his or her former attorney just because the defendant may have been 

guilty of some lesser charge that would have resulted in a lower 

sentence.

Likewise, our legal malpractice precedents have not adopted the 

principle that “subsequent negligent conduct” by the attorney can be 

compared to the “culpability” of the client that required him to need legal 

services in the first place. See Wiley, 966 P.2d at 986; cf. Restatement 

(Third) § 54 cmt. d, at 404 (discussing the scope of comparative 

negligence in the context of legal malpractice and noting that “clients are 

entitled to rely on their lawyers to act with competence, diligence, 

honesty, and loyalty”).
19

Additionally, while we wholeheartedly agree that “[t]he public has a 

strong interest in encouraging the representation of criminal defendants, 

particularly those who are ruled to be indigent,” Glenn, 569 N.E.2d at

788, it also has an interest in encouraging competent representation. 

Attorneys who serve indigent persons in other contexts, such as legal aid 

attorneys, are not exempt from potential malpractice claims.

Finally, we are not persuaded that an actual innocence 

requirement is needed to prevent a proliferation of nuisance suits. A 

criminal malpractice plaintiff still must obtain relief from the conviction. 

See Trobaugh, 668 N.W.2d at 583; see also Wiley, 966 P.2d at 994 (Mosk, 

J., dissenting) (asserting that the postconviction relief requirement “will 

screen out frivolous malpractice claims” obviating the need for an actual 

innocence requirement). And unless the plaintiff’s claim is based on 

standards of care and professionalism understood and expected by 

laypersons, the plaintiff will have to retain an expert to go forward. See 

Wilson v. Vanden Berg, 687 N.W.2d 575, 583 (Iowa 2004). Furthermore,

attorneys will still be able to avail themselves of traditional malpractice 

defenses. See Cort Thomas, Note, Criminal Malpractice: Avoiding the 

Chutes and Using the Ladders, 37 Am. J. Crim. L. 331, 342 (2010)

(outlining available defenses for defendant attorneys in criminal 

malpractice actions).

Barker’s former attorneys emphasize that persons suing the State 

under chapter 663A for wrongful imprisonment are required to prove 

actual innocence. See Iowa Code § 663A.1(2) (requiring proof of actual 

innocence by clear and convincing evidence); State v. DeSimone, 839 

N.W.2d 660, 665 (Iowa 2013); State v. McCoy, 742 N.W.2d 593, 599 (Iowa 

2007). However, the two types of actions serve different purposes. The 

wrongful-imprisonment statute is a limited exception to sovereign 
20

immunity intended to provide some compensation regardless of fault to 

“innocent persons who have been wrongfully convicted and imprisoned.” 

McCoy, 742 N.W.2d at 596. A legal malpractice claim is designed to 

compensate the client for her or his attorney’s breach of duty. See 

Sladek v. K Mart Corp., 493 N.W.2d 838, 840 (Iowa 1992) (“The goal in 

legal malpractice is to put clients in the position they would have 

occupied had the attorney not been negligent.”).

To the extent statutes are relevant, we believe Iowa Code section 

815.10(6) has more bearing on the present case than chapter 663A. 

Section 815.10(6), which governs appointed counsel, provides,

An attorney appointed under this section is not liable to a 

person represented by the attorney for damages as a result 

of a conviction in a criminal case unless the court 

determines in a postconviction proceeding or on direct 

appeal that the person’s conviction resulted from ineffective 

assistance of counsel, and the ineffective assistance of 

counsel is the proximate cause of the damage.

Thus, the legislature has established immunity for appointed 

counsel unless a postconviction court determines that the client’s 

“conviction resulted from ineffective assistance of counsel.” This is 

similar to the “relief from a conviction” prerequisite that we recognized

under the common law in Trobaugh. See 668 N.W.2d at 583. Section 

815.10(6) does not contain an actual innocence requirement, though. In 

short, Barker’s former attorneys ask us to impose an actual innocence 

requirement as a matter of common law that the legislature has declined 

to provide for appointed counsel as a matter of statutory law.

Hence, for the reasons stated, we conclude that a client’s showing 

of actual innocence is not a prerequisite to bringing a legal malpractice 

claim against a former criminal defense attorney.
21

IV. Conclusion.

For the foregoing reasons, we reverse the summary judgment of 

the district court and remand for further proceedings consistent with this 

opinion.4

REVERSED AND REMANDED.

All justices concur except Zager and Waterman, JJ., who dissent.

4Capotosto and Magee’s summary judgment motion argued as an alternative 

ground that Barker could not establish causation as a matter of law. The district court 

did not reach this issue, granting summary judgment only on the basis of Barker’s 

inability to establish his actual innocence. On appeal, Magee argues this alternative 

ground only briefly, and Capotosto does not argue it at all. In light of the fact that the 

district court did not reach this issue, we believe it would be prudent for us not to reach 

it as well. We leave it open for the parties to brief and for the district court to consider 

on remand.

 
22

#14–1550, Barker v. Capotosto

ZAGER, Justice (dissenting).

I respectfully dissent. For the reasons stated below, I would affirm 

the summary judgment ruling of the district court and join the majority 

of states in adopting the “actual innocence” requirement for a criminal 

defendant to pursue a criminal malpractice claim.

The majority has done a thorough analysis of the dozen or more 

jurisdictions that have considered and adopted the actual innocence 

requirement in criminal malpractice claims. See Wiley v. County of San 

Diego, 966 P.2d 983, 991 (Cal. 1998); Schreiber v. Rowe, 814 So. 2d 396, 

399–400 (Fla. 2002) (per curiam); Glenn v. Aiken, 569 N.E.2d 783, 787–

88 (Mass. 1991); Rodriguez v. Nielsen, 609 N.W.2d 368, 374–75 (Neb. 

2000); Morgano v. Smith, 879 P.2d 735, 738 (Nev. 1994); Mahoney v. 

Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996, 999–1000 (N.H. 

1999); Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987); Ang v. 

Martin, 114 P.3d 637, 642 (Wash. 2005); Humphries v. Detch, 712 S.E.2d 

795, 801 (W. Va. 2011). The majority also did a thorough analysis of 

alternative approaches to the actual innocence requirement in other 

jurisdictions, so I will not repeat them here. While the majority does not 

find the justifications utilized by the above jurisdictions persuasive, 

whether based on policy considerations or not, I do find them persuasive. 

We only need to look at the facts of this case to demonstrate that a clear, 

common sense approach requiring a prerequisite of actual innocence is

the appropriate approach.

Barker was initially charged with several offenses, including 

attempted enticement of a minor, an aggravated misdemeanor. Through 

plea negotiations, the court granted the State’s request to amend the trial 

information to an offense that was later determined to not be a 
23

recognizable crime. Barker pleaded guilty to the crime and was 

sentenced to prison in December 2006. The prison sentence was 

suspended. After less than two years of unsuccessful supervised 

probation, Barker’s probation was revoked on October 30, 2008. Barker 

filed an application for postconviction relief on October 1, 2009, for the 

first time raising an ineffective-assistance-of-counsel claim because there 

was no factual basis for his guilty plea to solicitation of a minor to engage 

in a sex act. In a written ruling, the district court granted the 

application on February 28, 2011, properly ruling that counsel had been 

ineffective for allowing Barker to plead guilty to a crime that did not 

exist. The court vacated the conviction and sentence. 

It is at this point that the actual innocence requirement may have 

its greatest impact on our analysis. Postconviction relief returns the case 

to the district court for further proceedings. Once there, it is left to the 

unbridled discretion of the county attorney whether to pursue the 

original charges, or any charges. In this case, the county attorney 

apparently made the determination not to continue with the prosecution 

of Barker. There are a multitude of reasons why a county attorney may 

choose not to further prosecute a defendant. It is not up to us to second 

guess those reasons. However, Barker does not dispute that his conduct 

was the crime of attempted enticement of a child in violation of Iowa 

Code section 710.10(3), an aggravated misdemeanor, the first count 

charged in the original trial information. See Iowa Code § 710.10(3) 

(2005). Clearly under the actual innocence requirement employed by the 

majority of jurisdictions, a plea to the charge would eliminate any cause 

of action for criminal malpractice, as I think it properly should. In my 

opinion, an admission by the malpractice claimant of actual guilt to a 

crime should also eliminate any claim for criminal malpractice. Whether 
24

there is a conviction for a criminal offense or an acknowledgement of 

guilt by the defendant, this is a logical basis to preclude a claim for 

criminal malpractice.

This brings us to an analysis of the concept of exoneration. The 

majority cites with approval the recent Kansas Supreme Court case of 

Mashaney v. Board of Indigents’ Defense Services, 355 P.3d 667 (Kan. 

2015). In that case, the court noted that in a prior decision it had 

adopted the “exoneration rule” under which the defendant had to obtain 

relief from his or her conviction before bringing a criminal malpractice 

claim. Id. at 673–74 (discussing Canaan v. Bartee, 72 P.3d 911 (Kan. 

2003)). As noted by the majority, the Kansas approach mirrors that 

taken by the Restatement of the Law Governing Lawyers. Compare id. at 

681–87, with Restatement (Third) of the Law Governing Lawyers § 53, at 

389 (Am. Law Inst. 2000). With regard to criminal malpractice claims, 

the Restatement concludes that “it is not necessary to prove that the 

convicted defendant was in fact innocent,” though it notes that “most 

jurisdictions addressing the issue have stricter rules.” Restatement § 53 

cmt. d, at 392. The Restatement adds, “As required by most 

jurisdictions addressing the issue, a convicted defendant seeking 

damages for malpractice causing a conviction must have had that 

conviction set aside when process for that relief on the grounds asserted 

in the malpractice action is available.” Id. As noted by the majority, this 

is the approach taken by the Iowa legislature with respect to courtappointed counsel. See Iowa Code § 815.10(6). However, there are two 

problems with reliance on this Code section. First, we need to have an 

approach which addresses all criminal malpractice claims, not just those 

against court-appointed counsel. Second, even the statute itself requires 

that the “ineffective assistance of counsel is the proximate cause of the 
25

damage.” Id. (emphasis added). The issue of proximate cause will be 

discussed later in this dissent. While I acknowledge that we often look to 

the Restatement for guidance, we should only rely on the Restatement to 

the extent we are persuaded that it is correct. I do not find the approach 

taken by the Restatement and like-minded jurisdictions to be persuasive.

The Kansas court believed that this exoneration requirement 

effectively precluded the bringing of frivolous malpractice claims by 

criminal defendants. Mashaney, 355 P.3d at 685. Similarly, the 

majority concludes that the exoneration rule serves as an important 

screen against unwarranted claims and “preserves key principles of 

judicial economy and comity.” Trobaugh v. Sondag, 668 N.W.2d 577, 583 

(Iowa 2003). While I agree it is an important screen, I do not think it 

goes far enough. The purpose of postconviction relief is not to determine 

whether a convicted defendant is actually innocent, but rather whether 

that person is not legally guilty. Postconviction relief exists to provide 

relief for defendants, irrespective of their actual innocence. That is to 

say, I agree that postconviction relief is a necessary, but not sufficient, 

prerequisite for raising a criminal malpractice claim. As will be 

discussed, actual innocence is necessary to establish an unbroken 

causal nexus between the criminal defense counsel’s alleged malpractice 

and the harm suffered.

In advocating for the adoption of the actual innocence requirement, 

a causation analysis needs to be part of the review of any potential 

criminal malpractice action. However, this analysis and screening is 

more appropriately conducted prior to trial, either through a motion to 

dismiss the claim or through a motion for summary judgment as was 

attempted here. The majority properly sets forth what a party must show 

to establish a prima facie claim of legal malpractice. The third element is 
26

that the attorney’s breach was the proximate cause of injury to the client. 

Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996). As noted by the 

Washington Supreme Court:

The fourth element, proximate causation, includes “[c]ause 

in fact and legal causation.” Cause in fact, or “but for” 

causation refers to “the physical connection between an act 

and an injury.” In a legal malpractice trial, the “trier of fact 

will be asked to decide what a reasonable jury or fact finder 

[in the underlying trial or ‘trial within a trial’] would have 

done but for the attorney’s negligence.” Legal causation, 

however, presents a question of law: “It involves a 

determination of whether liability should attach as a matter 

of law given the existence of cause in fact.” To determine 

whether the cause in fact of a plaintiff’s harm should also be 

deemed the legal cause of that harm, a court may consider, 

among other things, the public policy implications of holding 

the defendant liable.

Ang, 114 P.3d at 640 (quoting Hartley v. State, 698 P.2d 77, 82–83 

(Wash. 1985); Daugert v. Pappas, 704 P.2d 600, 603 (Wash. 1985) 

(emphasis added)).

I agree with the position articulated by the Washington Supreme 

Court that the need to establish actual innocence, not simply legal 

innocence, is essential to proving proximate causation—both cause in 

fact and legal causation. Id. In Ang, the plaintiffs claimed that legal 

causation or innocence was established by a not guilty verdict in a 

criminal prosecution. Id. at 641. In our case, according to the majority, 

legal causation is established by the finding of ineffective assistance of 

counsel in a postconviction action. I do not believe that legal causation 

can be established under either circumstance absent actual innocence. 

Since I believe that legal causation is a matter of law that can be 

determined by the district court, and that this can only be established by 

actual innocence, the district court was correct in granting summary 

judgment to the defendants.
27

The Washington Supreme Court also included within its proximate 

cause analysis a consideration of public policy in support of requiring 

actual innocence:

Unless criminal malpractice plaintiffs can prove by a 

preponderance of the evidence their actual innocence of the 

charges, their own bad acts, not the alleged negligence of 

defense counsel, should be regarded as the cause in fact of 

their harm. Likewise, if criminal malpractice plaintiffs 

cannot prove their actual innocence under the civil standard, 

they will be unable to establish, in light of significant public 

policy considerations, that the alleged negligence of their 

defense counsel was the legal cause of their harm. 

Summarizing the policy concerns, the Falkner court 

observed that, “[r]equiring a defendant to prove by a 

preponderance of the evidence that he is innocent of the 

charges against him will prohibit criminals from benefitting 

from their own bad acts, maintain respect for our criminal 

justice system[’]s procedural protections, remove the harmful 

chilling effect on the defense bar, prevent suits from 

criminals who may be guilty, [but] could have gotten a better 

deal, and prevent a flood of nuisance litigation.”

Id. at 642 (quoting Falkner v. Foshaug, 29 P.3d 771, 776 (Wash. Ct. App. 

2001) (footnote omitted)). These are all sound policy reasons which 

support adopting an actual innocence requirement.

On a final note, the majority gives inadequate weight to the 

significant policy reasons for requiring proof of actual innocence as an 

additional prerequisite for a prima facie criminal malpractice case. See

Cort Thomas, Note, Criminal Malpractice: Avoiding the Chutes and Using 

the Ladders, 37 Am. J. Crim. L. 331, 345–46 (2010) [hereinafter Thomas] 

(outlining the various public policy reasons that courts have found 

persuasive when adopting an actual innocence requirement). New York 

has adopted the actual innocence requirement in criminal malpractice 

cases where a defendant is seeking pecuniary damages. See Dombrowski 

v. Bulson, 971 N.E.2d 338, 340–41, (N.Y. 2012); Carmel, 511 N.E.2d at 

1128. In a more specific case, when New York’s highest court was faced 
28

with a criminal malpractice case where the defendant was also seeking 

nonpecuniary damages, the court recognized that expanding criminal 

malpractice liability would restrict access to justice, stating that:

Allowing this type of recovery would have, at best, negative 

and, at worst, devastating consequences for the criminal 

justice system. Most significantly, such a ruling could have 

a chilling effect on the willingness of the already strapped 

defense bar to represent indigent accused. Further, it would 

put attorneys in the position of having an incentive not to 

participate in post-conviction efforts to overturn wrongful 

convictions.

Dombrowski, 971 N.E.2d at 340–41. The same rationale extends to the 

situation before us, because the approach adopted by the majority places 

an unnecessary burden on the defense bar. I also note that, in this case, 

the majority has not applied any limiting language that would restrict 

criminal malpractice liability to only pecuniary damages.

The need to attract competent criminal defense attorneys is great. 

“The public has a strong interest in encouraging the representation of 

criminal defendants, particularly those who are ruled to be indigent.” 

Glenn, 569 N.E.2d at 788. Establishing an actual innocence requirement 

“helps to encourage that kind of legal representation by reducing the risk 

that malpractice claims will be asserted and, if asserted, will be 

successful.” Id. This is particularly true today, when more than eighty 

percent of all criminal defendants in this country are represented by 

court-appointed counsel, under the burden of increasing caseloads and 

shrinking budgets. Peter A. Joy, Ensuring the Ethical Representation of 

Clients in the Face of Excessive Caseloads, 75 Mo. L. Rev. 771, 774 

(2010). While certainly not an excuse, I believe any attorney with a 

substantial criminal defense practice will be subject to a significant 

increase in vexatious litigation with its corresponding expense, absent 
29

some logical gate-keeping function—which the actual innocence 

requirement provides.

This can be easily accomplished and is not a drastic change in our 

tort law. It simply requires that a plaintiff plead actual innocence as a 

prerequisite to the commencement of a criminal malpractice action. The 

true victims of criminal malpractice, who may be entitled to relief, will 

become obvious. It makes no sense to simply allow all exonerated 

defendants, for whatever reason, to be entitled to file a criminal 

malpractice action, perform discovery, procced to trial, and then expect 

the jury to decide whether the acts of the attorney were the proximate 

cause of damage to the defendant. This is an unnecessary expense to all 

parties concerned and a waste of judicial resources. See Thomas, 37 

Am. J. Crim. L. at 346 (noting that one pervasive public policy concern is 

flooding courts with unnecessary cases). The clear and rational solution 

is to adopt an actual innocence requirement, as a majority of 

jurisdictions have done. Then, the courts can evaluate the pleadings, 

review the factual basis of the claim, allow claims with merit to proceed, 

and dispose of meritless claims. This is what our court system is 

designed to do and is fair and reasonable to all parties involved. 

For the above reasons, I believe a reasonable threshold showing of 

actual innocence should be a prerequisite to bringing a criminal 

malpractice claim, as adopted by the majority of jurisdictions. Plaintiffs 

would then be allowed to utilize our traditional tort rules in the 

processing of their claims. Since the plaintiff in this action could not 

meet this reasonable threshold of actual innocence, I would affirm the 

summary judgment entered by the district court.

Waterman, J., joins this dissent.