Increased Claims Risk for Criminal Law Practitioners Related to PCR

Increased Claims Risk for Criminal Law Practitioners Related to PCR

When looking for trends in lawyer malpractice claims, we often look through the lens of claim frequency and claim severity.  Some areas of practice – like landlord-tenant or domestic relations – have a high frequency of claims but relatively low severity (or claim cost).  Other areas of practice do not generate many claims (i.e., low frequency), but the claims that do come in can be significant – such as business transactions, securities, and intellectual property.  As we monitor claims activity at the PLF, occasionally we see trends in claim frequency or severity or both. Such has been the case recently with criminal law.

Criminal law has historically been viewed as a low-claim frequency and severity area of practice – and rightly so.  Our claims statistics have borne that out.  Over the past 12 to 18 months, though, we have started to see the potential for increased exposure to these practitioners – specifically, claims against criminal defense attorneys whose clients have been convicted, but have subsequently been granted post-conviction relief (PCR).  Though the numbers are too small at this point to be considered a true statistical trend, we have seen a few such claims where the demand, or prayer, has been significantly in excess of the PLF Primary Coverage limit of $300,000.

Part of the role of the PLF in the Oregon legal community is to alert practitioners of potential malpractice traps or areas they should be aware of with increased claim potential.  We think that is the case here. 

The recent claims against criminal defense attorneys that fall into this category follow this basic fact pattern. A lawyer represents a defendant in a criminal matter in which the defendant is convicted and sentenced for the crime.  After serving a majority of the imposed sentence, the defendant is granted post-conviction relief and the district attorney’s office declines to prosecute the defendant again or the defendant enters a no-contest plea in exchange for a sentence that does not exceed the time served on the original conviction.  That defendant then makes a malpractice claim against the attorney in which he or she asserts damages above the PLF primary coverage limits (in some instances well above $1 million). As a reminder: criminal defense counsel should contact the PLF if documents, information, or testimony is requested from them in conjunction with their former client’s PCR petition.

A great way to guard against potential exposure above your PLF primary coverage limits is to obtain Excess Coverage for your law firm.  Excess Coverage is available from the PLF and from the commercial insurance market.  Purchasing Excess Coverage for your law firm will provide peace of mind that you and your law firm are protected in the unlikely event of a large claim.

Again, we believe part of the PLF’s role in the Oregon legal community is to alert lawyers of changes in the landscape related to potential malpractice claims.  Historically, the risk of significant claims to criminal law practitioners has been relatively low.  That may remain true, but we do think the recent increases we have seen in claims related to PCR may indicate that the landscape is changing.  If you have not considered Excess Coverage for your firm previously, now is a great time. 

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