              IN THE SUPREME COURT OF IOWA
                              No. 14–1550

                         Filed February 5, 2016

                         Amended May 4, 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 court-

appointed 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, proceed 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.
