IN THE SUPREME COURT OF IOWA

No. 16–1392

Filed March 16, 2018

RAY J. KRAKLIO,

Appellant,

vs.

KENT SIMMONS,

Appellee.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Scott County, J. Hobart 

Darbyshire, Judge. 

Criminal defense attorney seeks further review of court of appeals 

decision that reversed district court’s summary judgment dismissing 

legal malpractice action. DECISION OF COURT OF APPEALS 

AFFIRMED; DISTRICT COURT SUMMARY JUDGMENT REVERSED

AND CASE REMANDED. 

Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant. 

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry 

Brown & Bergmann L.L.P., Des Moines, and Kent A. Simmons, 

Bettendorf, pro se, for appellee. 
2

WATERMAN, Justice.

This appeal presents the narrow question of whether the reliefrequired rule (also called the exoneration rule) applies to a convicted 

criminal suing one of his defense attorneys for legal malpractice over an 

alleged missed opportunity to shorten his period of supervised probation. 

This rule ordinarily requires proof the client had been exonerated from 

the underlying conviction. The defendant attorney was retained after the 

malpractice plaintiff was convicted and sentenced on three counts of 

welfare fraud and ordered to pay restitution. The attorney successfully 

obtained postconviction relief vacating two convictions and over $80,000 

in restitution and successfully opposed the state’s effort to have his 

client civilly committed as a sexually violent predator. Meanwhile, the 

offender, represented by separate counsel, was incarcerated for a 

probation violation. The district court later determined sua sponte that

his term of supervised probation should have ended earlier, which would 

have avoided nearly a year in prison. The offender then sued one of his 

lawyers for malpractice. 

The defendant attorney moved for summary judgment on four 

grounds. The district court reached only one ground and granted 

summary judgment based on the relief-required rule. The court of 

appeals reversed the summary judgment and held the client may sue 

over the alleged sentencing error without proving his exoneration from 

the conviction, so long as he obtained relief from the sentencing error. 

That is the position taken by the Restatement (Third) of the Law 

Governing Lawyers. We hold the malpractice plaintiff in this situation

must prove relief from the sentencing error allegedly caused by the 

malpractice, not the underlying conviction. We express no opinion on 

the alternative grounds for summary judgment, including the scope of 
3

this defendant–attorney’s duty, if any, to monitor the duration of 

supervised probation. Those issues were not briefed or argued on appeal 

and may be decided by the district court on remand. 

I. Background Facts and Proceedings.

In November 2002, after a lengthy investigation into suspected 

welfare fraud, Ray J. Kraklio was charged with three counts of firstdegree fraudulent practice in violation of Iowa Code sections 714.8(3) and 

714.9 (2001). The facts are set forth in the decision of the court of 

appeals on his direct appeal, as follows:

Beginning in the early 1980s the Iowa Department of Human 

Services (DHS) suspected that Kraklio was living with Debra 

Dirksen and that at least one of her two children, Tammy, 

who was born February 21, 1980, and Chad, who was born 

October 2, 1981, was Kraklio’s child but that Dirksen and 

Kraklio were concealing this fact and his income 

contribution to the household in order to obtain welfare 

assistance, including food stamps, Family Investment 

Program (FIP) benefits (formerly Aid to Dependent Children 

(ADC) benefits), and Title XIX medical benefits. Between 

then and November of 2001 Child Support Recovery Unit 

(CSRU) personnel repeatedly questioned Dirksen as to whom 

the father of her children was or might be. Dirksen 

repeatedly maintained she had no idea who the father might 

be, and that Kraklio was not the father. Kraklio attended 

most of Dirksen’s interviews by state personnel, was aware 

of what Dirksen told them, and himself denied he was the 

father of any of Dirksen’s children. DHS records also 

indicate that during this same period of time Dirksen listed 

Kraklio as her landlord and daycare provider and the DHS 

used the rental and child-care figures provided by Dirksen to 

determine and increase her ongoing monthly public aid 

benefit amounts. Iowa Department of Inspections and 

Appeals (DIA) Investigator Randy Dodson was also aware of 

and worked on this case from time to time beginning in the 

early 1980s. 

In November 2001 Kraklio telephoned Investigator 

Dodson with a child support and welfare fraud complaint 

regarding his ex-wife. Dodson made arrangements to meet 

with Kraklio. Dirksen showed up with Kraklio for Dodson’s 

November 28, 2001 interview. At the interview Kraklio and 

Dirksen revealed to Dodson that they had been together for 

twenty-one years. They stated they had only been married 

for about one year, but had only been apart for 
4

approximately three months of the last twenty-one years. 

Dirksen and Kraklio also admitted to Dodson they had one 

child together, Chad Dirksen, born October 2, 1981. Based 

on this information Agent Dodson determined he should 

proceed to a criminal fraud investigation. 

The fraud investigation continued for approximately a 

year until a trial information was filed on November 26, 

2002. 

State v. Kraklio, No. 03–0813, 2005 WL 156803, at *1 (Iowa Ct. App. 

Jan. 26, 2005). 

Kraklio’s first attorney negotiated a plea bargain in which Kraklio 

agreed to plead guilty to all three counts and pay restitution while the 

state agreed to recommend probation. The court accepted Kraklio’s 

guilty plea and, on April 17, 2003, sentenced Kraklio to concurrent terms 

of not more than ten years, suspended the sentences, and placed him on 

five years of probation on each count to run consecutively. The court 

also ordered restitution totaling $139,489. 

Kraklio met with his probation officer who, according to Kraklio, 

told him that if he appealed he would not be supervised during the

appeal. Kraklio filed a pro se notice of appeal on May 16, 2003. On 

June 19, the district court appointed attorney Kent Simmons to 

represent Kraklio on this direct appeal. This is when Simmons’s

representation of Kraklio began. 

Simmons promptly informed Kraklio that the probation officer was 

not required to suspend supervision because Kraklio had not posted an 

appeal bond. Kraklio declined to post an appeal bond. Simmons also 

advised Kraklio that he had the right to begin his supervised probation 

while the appeal was pending, but Kraklio chose not to do so. 

Simmons moved for and obtained a limited remand to conduct

discovery into statute of limitations defenses. Based on the fruits of his 

discovery, Simmons argued Kraklio’s trial counsel was ineffective in 
5

failing to argue that some or all charges were time-barred. In its decision 

on the direct appeal, the court of appeals concluded that Kraklio’s trial 

counsel breached an essential duty by not determining “the possible 

viability of a statute of limitations defense.” Id. at *6. The court of 

appeals found the record inadequate to determine prejudice on two 

counts; the court preserved those claims for postconviction proceedings. 

Id. at *8. On the third count the court determined Kraklio was not 

prejudiced by any breach of duty and rejected Kraklio’s ineffectiveassistance-of-counsel claim. Id. The court of appeals affirmed Kraklio’s 

convictions on all counts, and procedendo issued on April 25, 2005. 

Kraklio’s supervised probation began in August. The probation 

officer asked Kraklio to sign a restitution plan to comply with the 

sentencing order, but Kraklio repeatedly refused to do so. In December, 

the probation officer filed a report of the probation violation, stating that 

he “resumed supervision of his case in August 2005” after Kraklio’s 

appeal was denied. Simmons represented Kraklio on this probation 

violation. In February 2006, Kraklio signed a restitution plan in which 

he agreed to pay $12,000 annually until he paid $139,488 restitution in 

full. 

Kraklio hired Simmons to represent him in a postconviction-relief

(PCR) action, which Simmons filed in May. Pursuant to a fee agreement, 

Kraklio paid Simmons nearly $10,000 for preparing, filing, and litigating 

the PCR action. 

In January 2008, Kraklio’s probation officer filed another report of 

probation violation because Kraklio had failed to comply with the 

restitution plan. Kraklio applied for counsel, and the court appointed a 

different lawyer to represent him. After a hearing, the court revoked 

Kraklio’s probation on January 31, 2008, and ordered him to prison. 
6

On April 3, the PCR court granted a motion for summary judgment

filed by Simmons and ordered Kraklio’s convictions on two counts 

vacated as barred by the statute of limitations. This avoided over 

$80,000 in restitution. 

Meanwhile, the Iowa Department of Corrections delayed Kraklio’s 

release from prison pending a determination whether he was a sexually 

violent predator based on his 1978 conviction for lascivious acts with a 

child. Simmons successfully litigated a motion for reconsideration of 

sentence. On March 24, 2009, the court entered an order vacating the 

sentence of imprisonment. The court ordered Kraklio to immediately 

contact his probation officer, stating that “supervision shall continue as 

originally ordered herein.” 

Kraklio resumed supervised probation without contesting his 

probation status. He again failed to pay restitution, so the probation 

officer filed another report of violation of probation. A different attorney 

was appointed to represent Kraklio at the revocation hearing held on 

February 4, 2010. By this time, Kraklio’s original probation officer had 

retired, and the new probation officer testified that Kraklio’s original 

probation began in April 2003, not August of 2005:

Q. Do your records indicate when the probation 

started for Mr. Kraklio? A. The original probation? 

Q. Right. A. I believe it was March of 2003. 

Q. Okay? A. Excuse me, April of 2003. 

Q. And was that probation ordered for any particular 

length of time? A. I believe it was ordered . . . for five years 

for each count. 

Q. And was that to be consecutive or concurrent? 

A. I believe it was consecutive. 

Q. When you make reference to the fact consecutive 

sentences for each count, that also would be affected by the 

dismissal of two of those counts in the interim, would it not? 

A. Possibly. 
7

Q. Leaving only one count with a total of five years’

probation, is that correct? A. Possibly. 

Q. And that started in April of 2003? A. Correct. 

Q. Has there been any motion filed or attempt made 

to extend the period of the defendant’s probation since it was 

originally imposed [at] the beginning of 2003? A. Not to my 

knowledge, no. 

At the conclusion of evidence and without arguments by counsel, the 

district court ruled from the bench that Kraklio’s “maximum period of 

probation for the remaining offense for which he’s been convicted has 

expired. Therefore, [Kraklio] will be discharged unsuccessfully from 

probation.” The court did not specify the date when Kraklio’s probation 

period expired. 

In 2014, Kraklio sued Simmons for malpractice, specifically 

alleging that Simmons “took no steps to see that [Kraklio] was discharged 

from probation.” Kraklio claimed that although he was not supervised 

until August 2005, he began probation immediately after his sentencing

in 2003 while his case was on direct appeal. According to Kraklio, his 

probation should have been discharged on April 17, 2008. Kraklio 

argued that Simmons was negligent in failing to have Kraklio discharged 

from his probation earlier, which would have avoided almost a year of

incarceration for violating a condition of probation. 

On April 23, 2016, Simmons filed a motion for summary judgment, 

raising four independent grounds:

1. [Kraklio] must first gain relief through proceedings 

in the criminal case or in a postconviction proceeding that 

set aside the criminal conviction before he can pursue a 

claim for malpractice against his criminal defense attorney

[the exoneration or relief-required rule];

2. Kraklio’s probation officer chose not to supervise 

him while his convictions were on direct appeal. At the 

beginning of the appeal process, Simmons advised Kraklio he 

had the right to begin the Supervision while on appeal 

because he had not posted an appeal bond, and Kraklio 
8

chose not to begin supervision. The supervision did not start 

until over two years after Kraklio was sentenced, and the 

five-year term had not expired when Kraklio was discharged;

3. Kraklio could not produce expert testimony to 

establish Simmons had a duty to calculate his probation 

expiration date and insure his discharge; and

4. Even if Kraklio could establish a duty and the 

discharge was past the expiration date, Kraklio could not 

establish any actual loss, injury or monetary damage. 

Kraklio resisted Simmons’s motion for summary judgment and retained

an expert witness, W. Jon Henson, a criminal defense attorney with

nearly thirty years of experience. In his affidavit, Henson stated,

The probation issued to Ray Kraklio was never 

extended. Therefore, Mr. Kraklio’s sentence should have 

discharged five years after his sentence was imposed. There 

is no provision in Iowa law which allows a probation officer 

to “suspend” his supervision of a defendant and then 

re-instate this when he chooses. The term of probation is set 

by Iowa law. The only time that probation is suspended and 

then re-instated in a case like this is if an appeal bond is 

posted. In this case there was no authority for Ray Kraklio 

to remain on supervision or incarceration after the five-year 

period had expired. 

At the time of this sentence, Ray Kraklio would have 

been subject to the Anderson ruling[1] and would have 

received credit for the time he was on probation. Therefore, 

even if Ray Kraklio’s probation officer has chosen not to 

supervise him, then his probation and/or incarceration 

would not have been extended. 

The district court granted Simmons’s motion for summary 

judgment on the first ground, noting that “[i]ronically, the only relief 

achieved on Mr. Kraklio’s behalf in this case was achieved by Simmons 

through his representation.” The court concluded that Kraklio could not 

advance a legal malpractice claim against Simmons because Kraklio 

never achieved relief from his underlying conviction, as required by 

 1See Anderson v. State, 801 N.W.2d 1, 2 (Iowa 2011) (holding defendant is 

entitled to credit for time served while on supervised probation), superseded by 

statutory amendment, 2012 Iowa Acts ch. 1138, § 91 (codified at Iowa Code § 907.3 

(2013)). 
9

Barker v. Capotosto, 875 N.W.2d 157, 161 (Iowa 2016) (“[A] criminal 

defendant must ‘achieve relief from a conviction before advancing a legal 

malpractice action against his former attorney.’ ” (quoting Trobaugh v. 

Sondag, 668 N.W.2d 577, 583 (Iowa 2003))). The court did not rule on 

any of the other grounds Simmons raised. Kraklio appealed, and we 

transferred the case to the court of appeals. 

The court of appeals considered that “[a]lthough Kraklio did not 

initiate the proceedings in which he obtained his relief—i.e., the 

probation revocation proceedings—the factual record developed at the 

hearing by his counsel quite clearly resulted in the court’s ruling finding 

his probation had expired.” The court, therefore, determined that Kraklio 

obtained relief before filing his malpractice action. 

The court continued,

We must now address a question not yet addressed by an 

Iowa appellate court: In a lawsuit based on alleged 

malpractice on sentencing issues, must there be “prior relief” 

from the underlying conviction, or is “prior relief” from the 

sentencing issue that forms the basis of the lawsuit enough 

to allow the case to proceed? 

In addressing this question, the court relied on a recent case in which 

the Kansas Supreme Court held that when a malpractice claim arises 

from an illegal sentence, the malpractice plaintiff—the defendant in the 

criminal case—is not required to prove he was actually innocent of the 

crimes but instead must “obtain post-sentencing relief from the unlawful 

sentence.” Garcia v. Ball, 363 P.3d 399, 408 (Kan. 2015). The court of 

appeals acknowledged that in Barker, this court found a different Kansas 

Supreme Court case, Mashaney v. Board of Indigents’ Defense Services, 

355 P.3d 667 (Kan. 2015), persuasive. The court of appeals explained 

that Garcia applied the principles of Mashaney, which dealt with 

malpractice resulting in a conviction, to a different claim: malpractice in 
10

a subsequent sentencing proceeding. The court reasoned, “If Garcia is a 

logical extension of Mashaney, then Kraklio’s case is, similarly, a logical 

extension of Barker.” The court of appeals concluded that “the same 

policy considerations [in Barker] support a finding the ‘prior relief’ 

requirement in this criminal legal malpractice action was satisfied when 

the district court in the probation-revocation proceeding declared 

Kraklio’s probation had ended.” Determining that the district court erred 

in relying on Barker, the court reversed the summary judgment and 

remanded for the district court to consider the alternative grounds for 

summary judgment it had not reached. The court of appeals 

acknowledged that it “ha[d] the authority to consider whether to affirm 

on grounds different than those on which the district court relied” but 

generally only does so “when those grounds have been urged and briefed 

on appeal.” The alternative grounds Simmons originally presented to the 

district court were not urged or briefed on the appeal. 

One judge dissented. While agreeing with the majority that Kraklio

needed to obtain relief before proceeding with a malpractice action and 

that such relief “may be something other than relief from the underlying 

conviction,” the dissenting judge “believe[d] the relief a legal malpractice 

plaintiff must obtain has to be based on the same grounds as alleged in 

the legal malpractice action.” The dissent concluded that Kraklio did not 

obtain such relief. Kraklio had alleged that his probation should have 

discharged on April 17, 2008, and that from that date through 

February 4, 2010, Simmons did nothing to see that Kraklio was 

discharged from prison. However, the district court in the 2010 

probation revocation proceeding made no finding that Kraklio’s probation 

was discharged on April 17, 2008, instead simply concluding that

Kraklio’s “maximum period of probation . . . has expired.” Because 
11

Kraklio failed “to obtain criminal relief on the grounds he alleged in his 

legal malpractice action—i.e. that his probation . . . expired on April 17, 

2008,” the dissent would conclude the district court did not err in 

granting summary judgment. 

We granted Simmons’s application for further review. 

II. Standard of Review. 

“We review grants of summary judgment for correction of errors at 

law.” Barker, 875 N.W.2d at 161. “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.” Id. (quoting Amish Connection, 

Inc. v. State Farm Fire & Cas. Co., 861 N.W.2d 230, 235 (Iowa 2015)). We 

view the record in the light most favorable to the nonmoving party. Id. 

III. Analysis. 

This case requires us to determine whether a criminal defendant 

suing his criminal defense attorney for legal malpractice over a 

sentencing error must prove he obtained relief from the underlying 

conviction. The court of appeals correctly noted that the case presents a

question of first impression in Iowa. 

A. Iowa’s Relief-Required Rule. A plaintiff must prove the 

following elements to recover for legal malpractice arising from either civil 

or criminal representation:

(1) the existence of an attorney–client relationship between 

the defendant and plaintiff giving rise to a duty; (2) the 

attorney, by either an act or a failure to act, breached that 

duty; (3) this breach proximately caused injury to the 

plaintiff; and (4) the plaintiff sustained actual injury, loss, or 

damage. 

Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997). We have recognized 

an additional requirement for clients suing their criminal defense 

attorney for malpractice: a criminal defendant must “achieve relief from a 
12

conviction before advancing a legal malpractice action against his former 

attorney.” Trobaugh, 668 N.W.2d at 583 (emphasis added). In Trobaugh, 

the client blamed his conviction on his lawyer’s negligent representation. 

Id. at 579. We explore that case in detail to see how the relief-required

rule should apply when the alleged malpractice relates to a sentencing 

issue (here, the duration of supervised probation) rather than the 

underlying conviction. 

Charles Trobaugh was charged “with assault with intent to inflict 

serious injury, assault with a dangerous weapon, and possession of a 

firearm by a felon.” Id. Assistant County Attorney Patrick Sondag signed 

the initial complaints against Trobaugh. Id. Sondag later was hired as

an assistant public defender in the same county and became Trobaugh’s 

defense attorney in the same case. Id. Trobaugh eventually accepted a 

plea agreement and pled guilty to displaying a dangerous weapon and 

possession of a firearm by a felon. Id. Trobaugh was incarcerated for 

eleven months. Id.

Trobaugh later was convicted of a federal drug offense. Id.

Trobaugh’s new attorney discovered that Sondag had signed the initial 

complaint against Trobaugh and then represented him in his defense 

against the same charges. Id. Trobaugh raised Sondag’s potential 

conflict of interest as a ground for relief in a PCR action, which was 

dismissed as time-barred. Id. Trobaugh filed another PCR application. 

Id. This application was successful, and Trobaugh was granted a new 

trial in November 2000. Id. He pled guilty to the charge of possession of 

a firearm by a felon, but the two other charges were dismissed. Id. 

Trobaugh then filed a claim for money damages with the State 

Appeal Board under the Iowa Tort Claims Act, arguing that Sondag, as a 

state employee, committed legal malpractice in his representation of 
13

Trobaugh. Id. After the board denied his claim, Trobaugh filed a civil

action against Sondag for legal malpractice. Id. at 579–80. Sondag 

moved to dismiss the claim on multiple grounds, including that 

Trobaugh’s tort claim was barred by the two-year statute of limitations in 

Iowa Code section 669.13 (2001). Id. at 580. The district court 

determined Trobaugh’s claims were untimely because they accrued in 

June 1997 when Trobaugh first discovered Sondag’s potential conflict of 

interest. Id. The court granted Sondag’s motion to dismiss, and 

Trobaugh appealed. Id. 

Trobaugh argued that his claim accrued when the PCR court 

granted him a new trial. Id. at 581. Accordingly, his state tort claim was 

timely. Id. Sondag, however, argued that Trobaugh’s malpractice claim 

was time-barred because he discovered the alleged malpractice years 

earlier when his new attorney discovered Sondag had worked on both 

sides of the original criminal case. Id. We acknowledged that “our 

resolution hinge[d] on whether a claim for legal malpractice in the 

criminal case context can be discovered prior to the plaintiff receiving 

relief from the conviction that allegedly resulted from negligent 

representation.” Id. We analyzed the various approaches used by courts 

in other jurisdictions, noting that some courts require relief from a 

conviction before a criminal defendant can successfully sue a former 

attorney for malpractice. Id. at 582. We explained that under this

“relief-required approach” a claim for malpractice accrues when relief 

from a conviction is granted. Id. We acknowledged multiple policy 

reasons for using the relief-required approach:

equitable principles against shifting responsibility for the 

consequences of the criminal’s action; the paradoxical 

difficulties of awarding damages to a guilty person; 

theoretical and practical difficulties of proving causation; the 
14

potential undermining of the postconviction process if a legal 

malpractice action overrules the judgments entered in the 

postconviction proceedings; preserving judicial economy by 

avoiding relitigation of settled matters; creation of a bright 

line rule determining when the statute of limitations runs on 

the malpractice action; availability of alternative 

postconviction remedies; and the chilling effect on thorough 

defense lawyering. 

Id. (quoting Canaan v. Bartee, 72 P.3d 911, 916 (Kan. 2003)). 

We also recognized that some courts do not require a criminal 

defendant to obtain relief from a conviction before bringing a legal 

malpractice claim. Id. Rather, “a claim for legal malpractice is found to 

accrue before relief from a conviction is achieved, often upon the 

discovery of the facts related to the attorney’s negligent conduct.” Id. 

But we concluded “that the approach that requires a defendant to 

achieve relief from a conviction before advancing a legal malpractice 

action against his former attorney is superior in this particular area of 

the law.” Id. at 583. We held that a claim for legal malpractice arising 

from a criminal case does not accrue until relief from a conviction is 

obtained. Id. 

In Trobaugh, we “avoid[ed] the question of what role, if any, the 

plaintiff’s guilt or innocence plays in advancing a claim for legal 

malpractice.” Id. at 583 n.4. That question was squarely presented in 

Barker. Robert Barker placed graffiti in a public restroom, “inviting 

young males interested in oral sex to contact a certain email address.” 

Barker, 875 N.W.2d at 158. Public complaints about the graffiti 

prompted law enforcement to investigate. Id. An Iowa Division of 

Criminal Investigation agent posed as a fifteen-year-old male “Jayson”

and established online contact with Barker, who arranged to meet 

“Jayson” for sex. Id. When Barker arrived at the arranged location, he 

was arrested. Id. The state charged him with attempted enticement of a 
15

minor and lascivious acts with a child. Id. The court later granted the 

state’s request to amend the second count to solicitation of a minor to 

commit a sex act. Id. 

Barker agreed to plead guilty to the amended charge of solicitation 

of a minor. Id. The state agreed to dismiss the count of attempted 

enticement and recommend a suspended sentence and probation on the 

condition that Barker complete sex offender treatment through a 

residential treatment facility. Id. Barker consulted with his attorney, 

Thomas Magee, about whether to plead guilty. Id. at 159. Magee later

closed his law office and withdrew from further representation, and the 

district court appointed Donald Capotosto to represent Barker. Id. 

After Barker’s plea and sentencing hearing, the district court 

sentenced him to five-year’s imprisonment, suspended the sentence, and 

placed Barker on probation for the duration of his sentence. Id. The 

sentencing order prohibited Barker from engaging in unsupervised 

contact with minors and provided that all internet access had to be 

preapproved by Barker’s probation officer. Id. The order allowed Barker 

to complete outpatient sex offender treatment through Catholic Charities 

rather than mandating commitment to a residential treatment facility. 

Id. 

Barker failed to comply with the treatment services at Catholic 

Charities and was discharged from its program. Id. A home visit 

revealed that Barker violated his probation through unauthorized 

internet use and “had images of young males on his computer.” Id. The 

district court ordered Barker into a residential treatment facility once 

space became available, and Barker was admitted to the facility in 

March 2008. Id. He was unsuccessfully terminated from the residential 

treatment facility, and the district court revoked Barker’s probation “and 
16

sentenced him to imprisonment for a term not to exceed five years with 

credit for time served.” Id. at 159–60. 

“Barker filed an application for postconviction relief from his 

conviction for solicitation of a minor.” Id. at 160. He claimed 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.” Id. The district 

court granted the application on February 28, 2011, reasoning that 

Barker would have had to solicit someone else to commit the actual 

crime and that Barker had not done so. Id.2 The district court vacated 

Barker’s conviction and sentence, concluding that Barker’s counsel failed 

to perform an essential duty and the defendant was prejudiced by the 

conviction entered upon the defective plea. Id. 

Barker filed a malpractice action alleging that Magee and 

Capotosto negligently advised him to plead guilty to an offense without a 

factual basis. Id. The defendant lawyers moved for summary judgment, 

arguing that Barker must prove his actual innocence and could not 

establish that he was factually innocent in the underlying criminal case.3 

Id. The district court granted summary judgment, concluding that 

actual innocence must be established. Id. 

 2As we noted in Barker,

The 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. 

875 N.W.2d at 158 n.1. 

3Barker did not dispute that his conduct amounted to attempted enticement of a 

child, as charged in the original trial information. Barker, 875 N.W.2d at 160. 
17

On appeal, we considered the approaches of other courts regarding 

whether proof of actual innocence is required when a criminal defendant 

sues his defense attorney for malpractice. See id. at 161–67. We noted 

that a majority of jurisdictions which have considered the issue adopted 

an “actual innocence” requirement. Id. at 161. We identified the 

rationales for the actual-innocence requirement, including that it would 

violate public policy to allow a person to profit from participation in 

illegal acts and that requiring “actual innocence prevents the former 

criminal defendant from shifting the responsibility for his or her 

conviction.” Id. at 163.

We next considered the Alaska approach, which allows the 

criminal defense attorney to raise actual guilt as an affirmative defense to 

the malpractice suit. Id. at 164 (citing Shaw v. State, 861 P.2d 566, 572 

(Alaska 1993)). The criminal defense attorney is required to prove the

former client’s guilt by a preponderance of the evidence but is not limited 

to evidence admissible in the criminal case. Id. 

Finally, we considered the approach of courts that have rejected 

the actual-innocence requirement. See id. at 164–67. We specifically 

examined Mashaney, in which the Kansas Supreme Court declined to 

adopt the actual-innocence requirement. Id. at 165. The Mashaney

court gave several reasons, including that, regardless of innocence, a 

criminal defendant is legally injured by being convicted and imprisoned if 

his or her defense 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.” Id. (quoting Mashaney, 355 P.3d at 684). 

Courts analyze an actual innocence requirement as a component 

of proximate cause. “Underlying the . . . requirement . . . that [a] plaintiff 

must have obtained postconviction relief . . . is the principle that absent 
18

relief from a conviction or sentence, the criminal plaintiff’s own actions

are presumably the proximate cause of his injury.” Jones v. Link, 493 

F. Supp. 2d 765, 769 (E.D. Va. 2007); cf. Mashaney, 355 P.3d at 674 

(“[U]ntil a plaintiff has been exonerated, his or her criminal conduct and 

not his or her attorney’s negligence is the proximate cause of his or her 

incarceration.” (quoting Canaan, 72 P.3d at 920–21). The Oregon 

Supreme Court, in adopting the “exoneration rule,” explained that “while 

the conviction and sentence remain valid for all other purposes, it is 

inappropriate to treat a complaining convicted offender as having been 

‘harmed’ in a legally cognizable way by that conviction.” Stevens v. 

Bispham, 851 P.2d 556, 562 (Or. 1993) (en banc). 

In Barker, we declined to follow the majority rule requiring actual 

innocence and, instead, relied on the causation provision in section 53 of 

the Restatement (Third) of the Law Governing Lawyers. 875 N.W.2d at 

165–66. A comment to that provision states,

A convicted criminal defendant suing for malpractice must 

prove both that the lawyer failed to act properly and that, 

but for that failure, the result would have been 

different . . . . Although most jurisdictions addressing the 

issue have stricter rules, under this Section it is not 

necessary to prove that the convicted defendant was in fact 

innocent. 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. 

Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392 

(Am. Law. Inst. 2000) (emphasis added). We found the approach of the 

Restatement (Third) to be persuasive. Barker, 875 N.W.2d at 166. We 

held that a criminal defendant is not required to prove actual innocence 

before bringing a malpractice claim against a former defense attorney.

Id. at 168. But we emphasized that the malpractice plaintiff must obtain 
19

judicial relief from the avoidable conviction blamed on the malpractice, 

as set forth in Trobaugh. Id. at 166. Importantly, neither Barker nor 

Trobaugh involved malpractice premised on a sentencing error rather 

than the conviction. 

B. Application of the Relief-Required Rule to a Sentencing 

Error. We now must determine whether Trobaugh and Barker require 

Kraklio to prove he obtained relief from his underlying conviction. 

Kraklio argues those cases are inapplicable because “the facts in those 

matters are not similar to the facts in this case and the claim is not 

based on the same issues.” Kraklio does not deny he committed the 

crime. He does not argue that he was wrongfully convicted. Instead, 

Kraklio argues that he should be able to sue Simmons for malpractice 

based on Simmons’s failure to ensure that Kraklio was released from 

probation on April 17, 2008. Kraklio argues that he is not required to 

show relief from his conviction, but need only prove the elements of legal 

malpractice set forth in Huber, 568 N.W.2d at 790 (“(1) the existence of 

an attorney–client relationship between the defendant and plaintiff giving 

rise to a duty; (2) the attorney, by either an act or a failure to act,

breached that duty; (3) this breach proximately caused injury to the 

plaintiff; and (4) the plaintiff sustained actual injury, loss, or damage”).4 

Simmons, on the other hand, urges us to require relief from the 

conviction under Trobaugh and Barker and hold that the district court 

correctly granted summary judgment because Kraklio obtained no relief 

from the conviction underlying his sentence of probation. And Simmons 

 4Other courts have equated the elements of proof for legal malpractice claims 

arising from criminal and civil representation. See, e.g., Krahn v. Kinney, 538 N.E.2d 

1058, 1061 (Ohio 1989) (collecting cases and holding that the elements of proof for legal 

malpractice are the same regardless of whether the action arises from civil or criminal 

representation). 
20

argues that Kraklio failed to preserve error by not presenting the district 

court with any legal authority suggesting that the relief-required rule 

should be changed or any policy arguments on why the rule should not 

apply to his case. Kraklio, however, did argue that “[t]he claims in this 

case are not similar to” Barker and Trobaugh. We conclude that Kraklio

preserved error. See Estate of Gottschalk v. Pomeroy Dev., Inc., 893 

N.W.2d 579, 585 (Iowa 2017) (explaining that the error preservation rule

requiring a party to raise and obtain a decision on an issue in district 

court before an appellate court decides the issue “serves the purpose of 

ensuring both opposing counsel and the district court receive notice of 

the basis for a claim at a time when corrective action is still possible”). 

We conclude Barker and Trobaugh are distinguishable because the 

malpractice in those cases led to an avoidable conviction while Kraklio 

claims Simmons missed the opportunity to end his probation sooner

without blaming him for the underlying conviction. We follow the 

Restatement (Third) of the Law Governing Lawyers, section 53, as we did 

in Barker. This means Kraklio must show relief from the duration of his 

supervised probation, not the underlying conviction. Garcia, correctly 

applied here by our court of appeals, illustrates how the relief-required

rule works in this situation. See 363 P.3d at 406–07. George Michael

Garcia’s legal malpractice claim related to an illegal sentence rather than 

a wrongful conviction. Id. Garcia was ordered to serve postrelease 

supervision following his prison term, even though this was prohibited by 

a Kansas statute. Id. at 401–02. Garcia’s attorney, Charles Ball, did 

nothing to correct Garcia’s sentence, even after being notified of the 

mistake by the Kansas Department of Corrections. Id. at 402. While 

Garcia was serving this unlawful postrelease supervision, he was 

charged with burglary, pled guilty, and was incarcerated. Id. Because 
21

he committed the burglary while on postrelease supervision, Garcia was 

subject to a sentencing rule that required him to serve the remaining 

part of his postrelease supervision term in prison. Id. Garcia contacted 

Ball multiple times to inform him of the mistake, but Ball took no action. 

Id. Garcia filed a pro se motion to correct an illegal sentence, and the 

court entered a nunc pro tunc order that released him from prison. Id. 

The Kansas Supreme Court held that Garcia was not required to 

prove he was actually innocent of the crimes for which he was convicted

but instead “was required to obtain post-sentencing relief from the 

unlawful sentence.” Id. at 408. The Garcia court determined that this 

occurred “when the district court acknowledged that it had imposed an 

illegal sentence by entering a nunc pro tunc order, setting aside the 

illegal postrelease supervision term.” Id. 

We agree with Garcia’s reasoning, which correctly applies the 

Restatement (Third) approach. We hold that a criminal defendant suing 

his defense lawyer over a sentencing error must obtain postjudgment 

relief on the sentencing issue, but need not prove relief from the 

underlying conviction. See id.; see also Jones, 493 F. Supp. 2d at 769–

71 (requiring criminal defendant to allege he obtained postconviction 

sentencing relief before suing his attorney for malpractice when the 

criminal defendant “complains that his attorney’s negligence resulted in 

a sentencing error”);5 Johnson v. Babcock, 136 P.3d 77, 78 (Or. Ct. App. 

 5In rejecting the actual-innocence requirement in that circumstance, the Jones

court described a hypothetical situation that mirrors Kraklio’s situation:

[I]t is appropriate to examine the consequences of a contrary holding in a 

situation not presented here, namely where an attorney’s negligence 

resulted in a legally impermissible sentence that is not corrected until 

after plaintiff has already served a longer sentence than legally 

warranted. In such a case, any available appellate, post-conviction, or 

habeas corpus remedies would not sufficiently redress plaintiff’s injury, 

that is his unlawfully prolonged incarceration, and in these 
22

2006) (holding that it is sufficient for criminal defendant to allege that 

defense attorney’s negligence resulted in a sentencing error and that 

defendant obtained postconviction sentencing relief). 

Similarly, the New Hampshire Supreme Court held the malpractice 

plaintiff need not prove actual innocence when suing over a sentencing 

error. Hilario v. Reardon, 960 A.2d 337, 345 (N.H. 2008). Jose Hilario

was indicted on several charges and pled guilty to all of them. Id. at 339. 

The plea agreement provided that the state would petition for suspension 

of part of his sentence if Hilario cooperated in other prosecutions. Id. 

Hilario’s attorney, Neil Reardon, filed a motion to withdraw Hilario’s plea 

regarding some of the charges, allegedly without Hilario’s authorization 

or knowledge. Id. The motion was denied. Id. When Hilario later filed a 

motion to suspend part of his sentence pursuant to the plea agreement, 

the state objected, arguing that Hilario breached the plea agreement by 

attempting to withdraw his plea. Id. Hilario sued Reardon for 

malpractice based on his filing the motion to withdraw Hilario’s guilty 

plea. Id. 

Reardon argued that Hilario’s claim was barred by Mahoney v. 

Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996 (N.H. 1999). Id. 

_______________________

circumstances, plaintiff’s “case [would be] more akin to that of an 

innocent person wrongfully convicted than of a guilty person attempting 

to take advantage of his own wrongdoing.” It follows then that like the 

“innocent person wrongfully convicted due to inadequate representation 

[he] has suffered a compensable injury [and] the nexus between the 

malpractice and palpable harm is sufficient to warrant a civil action, 

however inadequate, to redress the loss.” Thus, the actual innocence 

requirement should not apply where plaintiff alleges that his attorney’s 

negligence resulted in a sentencing error because to hold otherwise 

would deprive a plaintiff subjected to an unlawfully prolonged 

incarceration due to his attorney’s negligence of redress for his injury. 

493 F. Supp. 2d at 770 (alterations in original) (first quoting Powell v. Associated 

Counsel for the Accused, 129 P.3d 831, 833 (Wash. Ct. App. 2006); and then quoting 

Wiley v. County of San Diego, 966 P.2d 983, 987 (Cal. 1998)). 
23

In Mahoney, the New Hampshire Supreme Court held that “a criminal 

malpractice action will fail if the claimant does not allege and prove, by a 

preponderance of the evidence, actual innocence.” 727 A.2d at 998–99. 

The Hilario court noted, “In Mahoney and other cases applying similar 

standards, courts are generally concerned with malpractice actions that, 

even if they do not directly challenge the underlying conviction, tend to 

undermine or indirectly challenge it.” 960 A.2d at 343. The Hilario court

concluded,

[W]here the alleged legal malpractice occurred after the plea 

and sentencing, where the claim is unrelated to any strategic 

or tactical decision relating to the plaintiff’s convictions, and 

where the plaintiff does not argue that but for his attorney’s 

negligence he would have obtained a different result in the 

criminal case, the legal malpractice action is not barred by 

Mahoney. 

Id. at 345. The court found Mahoney distinguishable because

the malpractice alleged does not challenge [Hilario’s] 

convictions and is not an argument that if his attorney had 

acted differently, a different result would obtain. He has not, 

and does not now, challenge any tactical or strategic decision 

bearing upon his convictions. 

Id. at 343. The New Hampshire Supreme Court later characterized 

Hilario as “limited to those situations where the client’s malpractice 

claims are unrelated to underlying guilt or innocence.” Gaylor v. Jeffco, 

999 A.2d 290, 293 (N.H. 2010). 

These cases reflect the Restatement (Third) position we adopt 

today. Because Kraklio does not allege Simmons negligently caused his 

conviction, Kraklio need not prove relief from that conviction. But the 

relief-required rule still applies to the alleged sentencing error. That is, 

Kraklio must prove he obtained relief from his period of supervised 

probation that he claims Simmons should have ended sooner. See

Restatement (Third) of the Law Governing Lawyers § 53, at 389 (“A 
24

lawyer is liable . . . only if the lawyer’s breach of a duty of care or breach 

of fiduciary duty was a legal cause of injury, as determined under 

generally applicable principles of causation and damages.”); id. reporter’s 

note cmt. d, at 397–98 (collecting cases holding collateral relief from the 

conviction is not required when the malpractice plaintiff does not 

challenge the conviction); see also Johnson, 136 P.3d at 80 (“An unlawful 

restraint of liberty can constitute harm . . . .”); Powell v. Associated 

Counsel for the Accused, 129 P.3d 831, 833 (Wash. Ct. App. 2006) (“His 

unlawful restraint beyond th[e maximum] period [allowed by law] was not 

a consequence of his own actions.”). 

The district court hearing Kraklio’s revocation challenge ruled that 

his probation actually had ended while he was incarcerated for the

probation violation. We conclude this ruling constituted sufficient relief 

from the alleged sentencing error to avoid summary judgment under the 

relief-required rule.6

Simmons acknowledges that his alternative grounds for summary 

judgment are not at issue on this appeal. Those may be addressed by 

the district court on remand. 

IV. Disposition. 

For these reasons, we affirm the decision of the court of appeals. 

We reverse the district court’s summary judgment and remand the case 

for further proceedings. 

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT 

COURT SUMMARY JUDGMENT REVERSED AND CASE REMANDED. 

 6We disagree with the dissent on the court of appeals that would find this claim 

barred because the revocation court failed to specify the exact date the probation period 

expired.