Legalities Behind Legal Malpractice
Anyone familiar with this blog is probably familiar with Louisville attorney Fred Radolovich (see previous posts). Radolovich resigned from the bar under terms of disbarment rather than risk being prosecuted for perjury charges arising out of misrepresentations he made to a judge about his experience handling death penalty cases (he said he had tried 4 when he hand actually tried 0).
Here is why he is relevant today. Because a large portion of my practice is representing people in claims against their former attorney (a.k.a. legal malpractice or legal negligence), I am frequently asked to review cases where a potential client believes their former lawyer mishandled a criminal matter and, as a result, the person was convicted of a crime they didn’t commit. I have never taken a case involving malpractice in a criminal case and there is a good reason. Kentucky law requires that a criminal conviction be overturned before you can sue the lawyer for malpractice. That’s right. Basically, your lawyer could fall asleep in trial, refuse to cross exam any witnesses or present any proof. But unless you won on appeal, you could not sue the lawyer for malpractice. A very high burden indeed.
Well, it seems someone may have a good criminal malpractice claim against Fred. Here is the opening paragraph from Andrew Wolfson’s article in the Courier Journal:
“Fifteen years old and charged with two murders in 1995, Michael Jennings thought he had no choice but to plead guilty in exchange for a life sentence.
His own lawyer, Fred Radolovich, indicated he could face the death penalty — or consecutive sentences of life without parole for 25 years — if he was convicted at trial, according to court records.
Radolovich, who has since been disbarred, was wrong on both counts: The U.S. Supreme Court had abolished the death penalty for such young offenders more than a dozen years earlier, and Kentucky law doesn’t allow life sentences to be run consecutively.
For 14 years, Jennings fought from behind bars to overturn his conviction.
He saw his efforts rewarded Wednesday, June 17, when U.S. Magistrate Judge Dave Whalin in Louisville ruled that Radolovich gave Jennings such bad advice that his conviction should be thrown out and the state of Kentucky should try him or release him.”
It’s not a slam dunk, and Radolovich might not have any insurance or assets to cover a judgment, but it does go to show that not all lawyers are equal.
PS. Be sure to check out our video explaining “What is Legal Malpractice”