In Levine, the seventh circuit concluded that Illinois courts would follow the majority and elaborated on the burden faced by a legal malpractice plaintiff who sues his criminal lawyer. The court held that a plaintiff suing his former criminal defense counsel must prove his own innocence and that a plaintiff was precluded from doing so if his conviction has not been overturned. The policy reasons for requiring a plaintiff to prove his innocence discussed in Levine and relied on by other states are persuasive. We agree that under Illinois law a plaintiff must prove his innocence before he may recover for his criminal defense attorney's malpractice. We next address the second holding in Levine that, if a plaintiff's conviction is not overturned, he is barred by the doctrine of collateral estoppel from presenting evidence to prove his innocence.
Collateral estoppel precludes a party from relitigating issues decided in an earlier proceeding.
Defensive use of collateral estoppel occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff previously litigated and lost. Our supreme court held that the plaintiff was not estopped from alleging that medication prescribed by a doctor caused his criminal behavior even though plaintiff pled guilty and admitted that his criminal conduct was knowing and intentional. The court considered that the plaintiff's acceptance of the plea bargain would result in a significant reduction in the charges and sentence. The court also noted that the plaintiff was motivated by the desire to finish medical school, which he could not do if sentenced to prison. Plaintiff here had no similar lack of incentive to litigate.