                                          FIRST DIVISION
                                          March 31, 2011



No. 1-09-2923


JOSE HERRERA-CORRAL, MARIBEL HERRERA     )   Appeal from the
and EDUARDO HERRERA,                     )   Circuit Court of
                                         )   Cook County.
    Plaintiffs-Appellants,               )
                                         )   No. 08 L 009003
    v.                                   )
                                         )
LAWRENCE H. HYMAN,                       )   The Honorable
                                         )   Elizabeth M. Budzinski,
    Defendant-Appellee.                  )   Judge Presiding.


     PRESIDING JUSTICE HALL delivered the judgment of the court
with opinion.

     Justices Hoffman and Rochford concurred in the judgment and
opinion.

                               OPINION

     The plaintiffs, Jose Herrera-Corral, his wife, Maribel

Herrera, and their son, Eduardo Herrera, (collectively, Mr.

Herrera-Corral), appeal from an order of the circuit court of

Cook County dismissing their complaint for legal malpractice

against the defendant, Lawrence H. Hyman (Mr. Hyman).       The sole

issue raised on appeal is whether the circuit court erred in

dismissing the complaint.

                        PROCEDURAL BACKGROUND

                     I. Federal Court Proceedings

     In 2002, Mr. Herrera-Corral and his father-in-law, Fidel

Robeles-Ortega, entered pleas of guilty in federal court to

conspiring to possess cocaine with intent to distribute.        Their

plea agreements reserved the right to appeal the denial of their
No. 1-09-2923

joint motion to suppress.    At the time of the entry of the plea

agreement, Mr. Hyman represented Mr. Herrera-Corral; Mr. Robeles-

Ortega was represented by different counsel.    Mr. Robeles-Ortega

appealed; the plaintiff did not.

     While Mr. Robeles-Ortega's appeal was pending, Mr. Herrera-

Corral filed a federal habeas corpus petition alleging, inter

alia, that Mr. Hyman's failure to file an appeal and failure to

remain available to him during the 10 days to file an appeal

constituted ineffective assistance of counsel.      The district

court denied the petition, but the court of appeals remanded the

case, ordering that the petition be granted.     Corral v. United

States, 498 F.3d 470 (7th Cir. 2007).

     Initially, the court of appeals noted that it had ruled in

Mr. Robeles-Ortega's appeal that the suppression motion should

have been granted.   See United States v. Robeles-Ortega, 348 F.3d

679 (7th Cir. 2003).    As a result, Mr. Robeles-Ortega    was

released from prison.    Corral, 498 F.3d at 471.    The court found

that Mr. Hyman's failure to remain available to Mr. Herrera-

Corral during the 10 days in which the notice of appeal was

required to be filed constituted ineffective assistance of

counsel.   As a result, Mr. Herrera-Corral "[was] entitled to an

appeal."   Corral, 498 F.3d at 475.    The case was remanded to the

district court.   On October 12, 2007, the district court

dismissed the indictment against Mr. Herrera-Corral, vacated his

sentence and ordered him released from custody.


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               II. Cook County Circuit Court Proceedings

     On August 14, 2008, Mr. Herrera-Corral filed a multi-count

complaint against Mr. Hyman, alleging legal malpractice, breach

of fiduciary duty, breach of contract and loss of consortium, all

stemming from Mr. Hyman's ineffective assistance of counsel.1

Subsequently, he filed an amended complaint alleging the same

causes of action.     Mr. Hyman filed a combined motion to dismiss

pursuant to sections 2-615 (failure to state a cause of action)

and 2-619 (a)(5) (complaint filed untimely) of the Code of Civil

Procedure (the Code).     735 ILCS 5/2-615, 2-619(5) (West 2008)).

On October 13, 2009, the circuit court dismissed the amended

complaint with prejudice.     This timely appeal followed.

                               ANALYSIS

     Mr. Herrera-Corral raises several arguments in support of

his contention that the circuit court erred in dismissing his

complaint.     As we conclude that the amended complaint was

properly dismissed pursuant to section 2-615 for failing to state

a cause of action, we need not address the remaining arguments

raised by Mr. Herrera-Corral.

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         Mr. Herrera-Corral also alleged that Mr. Hyman breached his

fiduciary duty to him by operating under a conflict of interest.

The court of appeals did not reach that claim, but stated that

Mr. Herrera-Corral would not be able to establish that the

presumed conflict adversely affected his representation.       Corral,

498 F.3d 470.

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No. 1-09-2923

                       I. Standard of Review

     We apply the de novo standard of review to the circuit

court's ruling on dismissal pursuant to section 2-615 of the Code

(735 ILCS 5/2-615, 2-619 (West 2008)).       See R&B Kapital, LLC v.

North Shore Community Bank & Trust Co., 358 Ill. App. 3d 912,

920, 832 N.E.2d 246 (2005).

                            II. Discussion

     A section 2-615 motion to dismiss challenges the legal

sufficiency of a complaint.    All well-pleaded facts alleged in

the complaint are taken as true.       R&B Kapital, LLC, 358 Ill. App.

3d at 920.   " 'On review of a section 2-615 dismissal, the

reviewing court must determine whether the allegations of the

complaint, when interpreted in a light most favorable to the

plaintiff, sufficiently set forth a cause of action on which

relief may be granted.' "     R&B Kapital, LLC, 358 Ill. App. 3d at

920 (quoting Carroll v. Faust, 311 Ill. App. 3d 679, 684, 725

N.E.2d 764 (2000)).   A dismissal should be granted only where the

plaintiff can prove no set of facts to support the cause of

action asserted.   R&B Kapital, LLC, 358 Ill. App. 3d at 920.

     A cause of action for legal malpractice consists of the

following elements: (1) an attorney-client relationship; (2) a

duty arising out of that relationship; (3) a breach of that duty;

(4) causation; and (5) actual damages.       Griffin v. Goldenhersh,

323 Ill. App. 3d 398, 404, 752 N.E.2d 1232 (2001).      Where a legal

malpractice case arises from a criminal conviction, the client


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No. 1-09-2923

must prove the additional element of his or her actual innocence

of the criminal charges.   Moore v. Owens, 298 Ill. App. 3d 672,

674, 698 N.E.2d 707 (1998); see Winniczek v. Nagelberg, 394 F.3d

505, 507 (7th Cir. 2005) (collecting Illinois cases).    Under

Illinois law, where a plaintiff does not claim to be innocent of

the crime for which he was convicted, he cannot bring a suit for

legal malpractice.   Winniczek, 394 F.3d at 507.

     Mr. Herrera-Corral devotes a large part of his argument to

the issue of when his cause of action for legal malpractice

accrued.   However, his legal malpractice claim never accrued in

this case because he did not and could not plead and prove that

he was actually innocent of the drug conspiracy charge to which

he pleaded guilty.

     The dismissal of the indictment in this case did not

constitute a finding of Mr. Herrera-Corral's guilt or innocence

of the charge in this case.   The court of appeals merely

determined that, because he was denied the effective assistance

of counsel, Mr. Herrera-Corral was entitled to an appeal of the

suppression issue.   On remand, the district court dismissed the

indictment and vacated his sentence.   An acquittal because

illegally seized evidence was used against a defendant is

unrelated to innocence.    Winniczek, 394 F.3d at 508.

     Mr. Herrera-Corral's reliance on Griffin is misplaced.

Griffin dealt with when a cause of action for legal malpractice

arising out of a criminal case accrued.   Contrary to Mr. Herrera-


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Corral's argument, the dispositive issue in this case is not when

his legal malpractice case accrued, but if it accrued at all

where he was unable to plead and prove his actual innocence of

the drug conspiracy charge.

     We also reject Mr. Herrera-Corral's contention that the

amended complaint alleged his "innocence" sufficiently to satisfy

the public policy of Illinois.   See Paulsen v. Cochran, 356 Ill.

App. 3d 354, 359, 826 N.E.2d 526 (2005) (a criminal defendant

must meet a different standard than a civil litigant to eliminate

the possibility that someone found guilty would profit from his

criminal activity).   In support of his contention, Mr. Herrera-

Corral cites United States v. MacDonald, 456 U.S. 1 (1982).

     In MacDonald, the United States Supreme Court addressed

whether the defendant's speedy trial rights were violated given

the delay between the dismissal of murder charges by the military

and his indictment by the government on the same charges.   Mr.

Herrera-Corral relies on the Court's statement that once

indictments are dismissed, an individual was legally and

constitutionally in the same posture as though no charges had

been brought.   However, the Court then continued as follows:

"[the defendant] was free to go about his affairs, to practice

his profession, and to continue with his life."    MacDonald, 456

U.S. at 10.   The Court did not hold that the dismissal of an

indictment automatically rendered a defendant innocent of the

charge or charges.    See also Moore, 298 Ill. App. 3d at 675


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No. 1-09-2923

(acquittal upon retrial alone will not suffice as proof of

innocence; the plaintiff must prove that he was actually

innocent).   Thus, the allegation in the amended complaint that

the indictment against him had been dismissed did not

sufficiently plead "actual innocence" for purposes of Mr.

Herrera-Corral's legal malpractice claim.

     Mr. Herrera-Corral then requests that this court recognize

an exception to the actual innocence rule, where the alleged

malpractice did not result in a conviction but rather, the loss

of the benefit of the bargain.    In this case, Mr. Herrera-Corral

points out that he lost the right to appeal the denial of the

motion to suppress, a benefit he achieved in pleading guilty.

     An exception to the actual innocence rule was recognized in

Morris v. Margulis, 307 Ill. App. 3d 1024, 718 N.E.2d 709 (1999),

rev'd on other grounds, 197 Ill. 2d 28, 754 N.E.2d 314 (2001).

In that case, the appellate court held that the actual innocence

rule did not apply to a claim for breach of fiduciary duty, where

it was alleged that a criminal attorney intentionally worked to

secure his client's conviction.       Morris, 307 Ill. App. 3d at

1039.   The court determined that the case did not present a

traditional legal malpractice claim and therefore did not present

an opportunity to reconsider the decision in Moore.       Morris, 307

Ill. App. 3d at 1039.

     This court has previously rejected the opportunity to create

another exception to the actual innocence rule.      In Paulsen, the


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No. 1-09-2923

client filed a legal malpractice suit against his attorney to

challenge the sentence he received pursuant to a plea agreement.

Paulsen, 356 Ill. App. 3d at 364.    On review, we observed that

since the decision in Morris, Illinois courts and the Seventh

Circuit, when applying Illinois law, had reaffirmed that proof of

actual innocence was needed to state a cause of action for legal

malpractice against a criminal defense attorney.    Paulsen, 356

Ill. App. 3d at 360.   The out-of-state cases relied on by the

client were not persuasive as those states had not adopted the

actual innocence rule.   Paulsen, 356 Ill. App. 3d at 363.

     Mr. Herrera-Corral relies on Hilario v. Reardon, 960 A.2d

337 (N.H. 2008).   Like Illinois, the New Hampshire courts have

adopted the actual innocence rule.    In that case, Mr. Hilario

pleaded guilty and agreed to cooperate in other investigations in

exchange for suspension of a portion of his sentence.    The trial

court denied Mr. Hilario's petition for suspension of his

sentence, finding that he breached the plea agreement when his

attorney later moved to withdraw the guilty plea.    The reviewing

court held that the actual innocence rule did not apply where the

alleged acts of malpractice did not challenge the convictions,

and there was no argument that, if the attorney had acted

differently, there would have been a different result.    Hilario,

960 A.2d at 345.

     Nonetheless, the court in Hilario recognized that, in cases

to which the actual innocence rule is applicable, "courts are


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No. 1-09-2923

generally concerned with malpractice actions that, even if they

do not directly challenge the underlying conviction, tend to

undermine or indirectly challenge it."     Hilario, 960 A.2d at 343.

Mr. Herrera-Corral's legal malpractice claim indirectly

challenged his conviction in that, even though he had pleaded

guilty, were his appeal to be successful, he would have been

acquitted and released.   As we noted above, an acquittal based on

the exclusion of evidence is not related to innocence.

     We find nothing in Hilario to persuade us to abandon the

actual innocence rule in a legal malpractice suit arising from a

criminal case.   Therefore, we will continue to adhere to the rule

unless directed otherwise by a decision of our supreme court.

     We conclude that Mr. Herrera-Corral cannot plead his actual

innocence of the drug conspiracy charge.    Therefore, he cannot

state a cause of action in tort for legal malpractice arising

from a criminal case.   Moreover, his inability to plead actual

innocence also precludes his causes of action for breach of

fiduciary duty and breach of contract as those claims arose from

the same acts of legal malpractice as did the tort claim. Compare

Winniczek, 394 F.3d 505 (breach of contract claim involved a fee

dispute, not incompetent representation); Morris, 307 Ill. App.

3d 1024 (breach of fiduciary duty involved intentional wrongdoing

by the attorney and was not a traditional legal malpractice

claim).




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No. 1-09-2923

                             CONCLUSION

     The dismissal of the amended complaint for failure to state

a cause of action was correct.   Deciding this case as we do, we

need not address the loss of consortium claims of Mrs. Herrera

and Eduardo Herrera, as those claims were dependent on the

viability of the legal malpractice cause of action.

     For all of the foregoing reasons, the judgment of the

circuit court is affirmed.

     Affirmed.




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