Ray J. Kraklio v. Kent Simmons

IN THE SUPREME COURT OF IOWA
No. 16–1392

Filed March 16, 2018

RAY J. KRAKLIO,

Appellant,

vs.

KENT SIMMONS,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire, Judge.

Criminal defense attorney seeks further review of court of appeals

decision that reversed district court’s summary judgment dismissing

legal malpractice action. DECISION OF COURT OF APPEALS

AFFIRMED; DISTRICT COURT SUMMARY JUDGMENT REVERSED

AND CASE REMANDED.

Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann L.L.P., Des Moines, and Kent A. Simmons,

Bettendorf, pro se, for appellee.
 2

WATERMAN, Justice.

This appeal presents the narrow question of whether the relief-

required rule (also called the exoneration rule) applies to a convicted

criminal suing one of his defense attorneys for legal malpractice over an

alleged missed opportunity to shorten his period of supervised probation.

This rule ordinarily requires proof the client had been exonerated from

the underlying conviction. The defendant attorney was retained after the

malpractice plaintiff was convicted and sentenced on three counts of

welfare fraud and ordered to pay restitution. The attorney successfully

obtained postconviction relief vacating two convictions and over $80,000

in restitution and successfully opposed the state’s effort to have his

client civilly committed as a sexually violent predator. Meanwhile, the

offender, represented by separate counsel, was incarcerated for a

probation violation. The district court later determined sua sponte that

his term of supervised probation should have ended earlier, which would

have avoided nearly a year in prison. The offender then sued one of his

lawyers for malpractice.

The defendant attorney moved for summary judgment on four

grounds. The district court reached only one ground and granted

summary judgment based on the relief-required rule. The court of

appeals reversed the summary judgment and held the client may sue

over the alleged sentencing error without proving his exoneration from

the conviction, so long as he obtained relief from the sentencing error.

That is the position taken by the Restatement (Third) of the Law

Governing Lawyers. We hold the malpractice plaintiff in this situation

must prove relief from the sentencing error allegedly caused by the

malpractice, not the underlying conviction. We express no opinion on

the alternative grounds for summary judgment, including the scope of
 3

this defendant–attorney’s duty, if any, to monitor the duration of

supervised probation. Those issues were not briefed or argued on appeal

and may be decided by the district court on remand.

I. Background Facts and Proceedings.

In November 2002, after a lengthy investigation into suspected

welfare fraud, Ray J. Kraklio was charged with three counts of first-

degree fraudulent practice in violation of Iowa Code sections 714.8(3) and

714.9 (2001). The facts are set forth in the decision of the court of

appeals on his direct appeal, as follows:

Beginning in the early 1980s the Iowa Department of Human
Services (DHS) suspected that Kraklio was living with Debra
Dirksen and that at least one of her two children, Tammy,
who was born February 21, 1980, and Chad, who was born
October 2, 1981, was Kraklio’s child but that Dirksen and
Kraklio were concealing this fact and his income
contribution to the household in order to obtain welfare
assistance, including food stamps, Family Investment
Program (FIP) benefits (formerly Aid to Dependent Children
(ADC) benefits), and Title XIX medical benefits. Between
then and November of 2001 Child Support Recovery Unit
(CSRU) personnel repeatedly questioned Dirksen as to whom
the father of her children was or might be. Dirksen
repeatedly maintained she had no idea who the father might
be, and that Kraklio was not the father. Kraklio attended
most of Dirksen’s interviews by state personnel, was aware
of what Dirksen told them, and himself denied he was the
father of any of Dirksen’s children. DHS records also
indicate that during this same period of time Dirksen listed
Kraklio as her landlord and daycare provider and the DHS
used the rental and child-care figures provided by Dirksen to
determine and increase her ongoing monthly public aid
benefit amounts. Iowa Department of Inspections and
Appeals (DIA) Investigator Randy Dodson was also aware of
and worked on this case from time to time beginning in the
early 1980s.
In November 2001 Kraklio telephoned Investigator
Dodson with a child support and welfare fraud complaint
regarding his ex-wife. Dodson made arrangements to meet
with Kraklio. Dirksen showed up with Kraklio for Dodson’s
November 28, 2001 interview. At the interview Kraklio and
Dirksen revealed to Dodson that they had been together for
twenty-one years. They stated they had only been married
for about one year, but had only been apart for
 4
approximately three months of the last twenty-one years.
Dirksen and Kraklio also admitted to Dodson they had one
child together, Chad Dirksen, born October 2, 1981. Based
on this information Agent Dodson determined he should
proceed to a criminal fraud investigation.
The fraud investigation continued for approximately a
year until a trial information was filed on November 26,
2002.

State v. Kraklio, No. 03–0813, 2005 WL 156803, at *1 (Iowa Ct. App.

Jan. 26, 2005).

Kraklio’s first attorney negotiated a plea bargain in which Kraklio

agreed to plead guilty to all three counts and pay restitution while the

state agreed to recommend probation. The court accepted Kraklio’s

guilty plea and, on April 17, 2003, sentenced Kraklio to concurrent terms

of not more than ten years, suspended the sentences, and placed him on

five years of probation on each count to run consecutively. The court

also ordered restitution totaling $139,489.

Kraklio met with his probation officer who, according to Kraklio,

told him that if he appealed he would not be supervised during the

appeal. Kraklio filed a pro se notice of appeal on May 16, 2003. On

June 19, the district court appointed attorney Kent Simmons to

represent Kraklio on this direct appeal. This is when Simmons’s

representation of Kraklio began.

Simmons promptly informed Kraklio that the probation officer was

not required to suspend supervision because Kraklio had not posted an

appeal bond. Kraklio declined to post an appeal bond. Simmons also

advised Kraklio that he had the right to begin his supervised probation

while the appeal was pending, but Kraklio chose not to do so.

Simmons moved for and obtained a limited remand to conduct

discovery into statute of limitations defenses. Based on the fruits of his

discovery, Simmons argued Kraklio’s trial counsel was ineffective in
 5

failing to argue that some or all charges were time-barred. In its decision

on the direct appeal, the court of appeals concluded that Kraklio’s trial

counsel breached an essential duty by not determining “the possible

viability of a statute of limitations defense.” Id. at *6. The court of

appeals found the record inadequate to determine prejudice on two

counts; the court preserved those claims for postconviction proceedings.

Id. at *8. On the third count the court determined Kraklio was not

prejudiced by any breach of duty and rejected Kraklio’s ineffective-

assistance-of-counsel claim. Id. The court of appeals affirmed Kraklio’s

convictions on all counts, and procedendo issued on April 25, 2005.

Kraklio’s supervised probation began in August. The probation

officer asked Kraklio to sign a restitution plan to comply with the

sentencing order, but Kraklio repeatedly refused to do so. In December,

the probation officer filed a report of the probation violation, stating that

he “resumed supervision of his case in August 2005” after Kraklio’s

appeal was denied. Simmons represented Kraklio on this probation

violation. In February 2006, Kraklio signed a restitution plan in which

he agreed to pay $12,000 annually until he paid $139,488 restitution in

full.

Kraklio hired Simmons to represent him in a postconviction-relief

(PCR) action, which Simmons filed in May. Pursuant to a fee agreement,

Kraklio paid Simmons nearly $10,000 for preparing, filing, and litigating

the PCR action.

In January 2008, Kraklio’s probation officer filed another report of

probation violation because Kraklio had failed to comply with the

restitution plan. Kraklio applied for counsel, and the court appointed a

different lawyer to represent him. After a hearing, the court revoked

Kraklio’s probation on January 31, 2008, and ordered him to prison.
 6

On April 3, the PCR court granted a motion for summary judgment

filed by Simmons and ordered Kraklio’s convictions on two counts

vacated as barred by the statute of limitations. This avoided over

$80,000 in restitution.

Meanwhile, the Iowa Department of Corrections delayed Kraklio’s

release from prison pending a determination whether he was a sexually

violent predator based on his 1978 conviction for lascivious acts with a

child. Simmons successfully litigated a motion for reconsideration of

sentence. On March 24, 2009, the court entered an order vacating the

sentence of imprisonment. The court ordered Kraklio to immediately

contact his probation officer, stating that “supervision shall continue as

originally ordered herein.”

Kraklio resumed supervised probation without contesting his

probation status. He again failed to pay restitution, so the probation

officer filed another report of violation of probation. A different attorney

was appointed to represent Kraklio at the revocation hearing held on

February 4, 2010. By this time, Kraklio’s original probation officer had

retired, and the new probation officer testified that Kraklio’s original

probation began in April 2003, not August of 2005:

Q. Do your records indicate when the probation
started for Mr. Kraklio? A. The original probation?
Q. Right. A. I believe it was March of 2003.
Q. Okay? A. Excuse me, April of 2003.
Q. And was that probation ordered for any particular
length of time? A. I believe it was ordered . . . for five years
for each count.
Q. And was that to be consecutive or concurrent?
A. I believe it was consecutive.
Q. When you make reference to the fact consecutive
sentences for each count, that also would be affected by the
dismissal of two of those counts in the interim, would it not?
A. Possibly.
 7
Q. Leaving only one count with a total of five years’
probation, is that correct? A. Possibly.
Q. And that started in April of 2003? A. Correct.
Q. Has there been any motion filed or attempt made
to extend the period of the defendant’s probation since it was
originally imposed [at] the beginning of 2003? A. Not to my
knowledge, no.

At the conclusion of evidence and without arguments by counsel, the

district court ruled from the bench that Kraklio’s “maximum period of

probation for the remaining offense for which he’s been convicted has

expired. Therefore, [Kraklio] will be discharged unsuccessfully from

probation.” The court did not specify the date when Kraklio’s probation

period expired.

In 2014, Kraklio sued Simmons for malpractice, specifically

alleging that Simmons “took no steps to see that [Kraklio] was discharged

from probation.” Kraklio claimed that although he was not supervised

until August 2005, he began probation immediately after his sentencing

in 2003 while his case was on direct appeal. According to Kraklio, his

probation should have been discharged on April 17, 2008. Kraklio

argued that Simmons was negligent in failing to have Kraklio discharged

from his probation earlier, which would have avoided almost a year of

incarceration for violating a condition of probation.

On April 23, 2016, Simmons filed a motion for summary judgment,

raising four independent grounds:

1. [Kraklio] must first gain relief through proceedings
in the criminal case or in a postconviction proceeding that
set aside the criminal conviction before he can pursue a
claim for malpractice against his criminal defense attorney
[the exoneration or relief-required rule];
2. Kraklio’s probation officer chose not to supervise
him while his convictions were on direct appeal. At the
beginning of the appeal process, Simmons advised Kraklio he
had the right to begin the Supervision while on appeal
because he had not posted an appeal bond, and Kraklio
 8
chose not to begin supervision. The supervision did not start
until over two years after Kraklio was sentenced, and the
five-year term had not expired when Kraklio was discharged;
3. Kraklio could not produce expert testimony to
establish Simmons had a duty to calculate his probation
expiration date and insure his discharge; and
4. Even if Kraklio could establish a duty and the
discharge was past the expiration date, Kraklio could not
establish any actual loss, injury or monetary damage.

Kraklio resisted Simmons’s motion for summary judgment and retained

an expert witness, W. Jon Henson, a criminal defense attorney with

nearly thirty years of experience. In his affidavit, Henson stated,

The probation issued to Ray Kraklio was never
extended. Therefore, Mr. Kraklio’s sentence should have
discharged five years after his sentence was imposed. There
is no provision in Iowa law which allows a probation officer
to “suspend” his supervision of a defendant and then
re-instate this when he chooses. The term of probation is set
by Iowa law. The only time that probation is suspended and
then re-instated in a case like this is if an appeal bond is
posted. In this case there was no authority for Ray Kraklio
to remain on supervision or incarceration after the five-year
period had expired.
At the time of this sentence, Ray Kraklio would have
been subject to the Anderson ruling[1] and would have
received credit for the time he was on probation. Therefore,
even if Ray Kraklio’s probation officer has chosen not to
supervise him, then his probation and/or incarceration
would not have been extended.

The district court granted Simmons’s motion for summary

judgment on the first ground, noting that “[i]ronically, the only relief

achieved on Mr. Kraklio’s behalf in this case was achieved by Simmons

through his representation.” The court concluded that Kraklio could not

advance a legal malpractice claim against Simmons because Kraklio

never achieved relief from his underlying conviction, as required by

1See Anderson v. State, 801 N.W.2d 1, 2 (Iowa 2011) (holding defendant is

entitled to credit for time served while on supervised probation), superseded by
statutory amendment, 2012 Iowa Acts ch. 1138, § 91 (codified at Iowa Code § 907.3
(2013)).
 9

Barker v. Capotosto, 875 N.W.2d 157, 161 (Iowa 2016) (“[A] criminal

defendant must ‘achieve relief from a conviction before advancing a legal

malpractice action against his former attorney.’ ” (quoting Trobaugh v.

Sondag, 668 N.W.2d 577, 583 (Iowa 2003))). The court did not rule on

any of the other grounds Simmons raised. Kraklio appealed, and we

transferred the case to the court of appeals.

The court of appeals considered that “[a]lthough Kraklio did not

initiate the proceedings in which he obtained his relief—i.e., the

probation revocation proceedings—the factual record developed at the

hearing by his counsel quite clearly resulted in the court’s ruling finding

his probation had expired.” The court, therefore, determined that Kraklio

obtained relief before filing his malpractice action.

The court continued,

We must now address a question not yet addressed by an
Iowa appellate court: In a lawsuit based on alleged
malpractice on sentencing issues, must there be “prior relief”
from the underlying conviction, or is “prior relief” from the
sentencing issue that forms the basis of the lawsuit enough
to allow the case to proceed?

In addressing this question, the court relied on a recent case in which

the Kansas Supreme Court held that when a malpractice claim arises

from an illegal sentence, the malpractice plaintiff—the defendant in the

criminal case—is not required to prove he was actually innocent of the

crimes but instead must “obtain post-sentencing relief from the unlawful

sentence.” Garcia v. Ball, 363 P.3d 399, 408 (Kan. 2015). The court of

appeals acknowledged that in Barker, this court found a different Kansas

Supreme Court case, Mashaney v. Board of Indigents’ Defense Services,

355 P.3d 667 (Kan. 2015), persuasive. The court of appeals explained

that Garcia applied the principles of Mashaney, which dealt with

malpractice resulting in a conviction, to a different claim: malpractice in
 10

a subsequent sentencing proceeding. The court reasoned, “If Garcia is a

logical extension of Mashaney, then Kraklio’s case is, similarly, a logical

extension of Barker.” The court of appeals concluded that “the same

policy considerations [in Barker] support a finding the ‘prior relief’

requirement in this criminal legal malpractice action was satisfied when

the district court in the probation-revocation proceeding declared

Kraklio’s probation had ended.” Determining that the district court erred

in relying on Barker, the court reversed the summary judgment and

remanded for the district court to consider the alternative grounds for

summary judgment it had not reached. The court of appeals

acknowledged that it “ha[d] the authority to consider whether to affirm

on grounds different than those on which the district court relied” but

generally only does so “when those grounds have been urged and briefed

on appeal.” The alternative grounds Simmons originally presented to the

district court were not urged or briefed on the appeal.

One judge dissented. While agreeing with the majority that Kraklio

needed to obtain relief before proceeding with a malpractice action and

that such relief “may be something other than relief from the underlying

conviction,” the dissenting judge “believe[d] the relief a legal malpractice

plaintiff must obtain has to be based on the same grounds as alleged in

the legal malpractice action.” The dissent concluded that Kraklio did not

obtain such relief. Kraklio had alleged that his probation should have

discharged on April 17, 2008, and that from that date through

February 4, 2010, Simmons did nothing to see that Kraklio was

discharged from prison. However, the district court in the 2010

probation revocation proceeding made no finding that Kraklio’s probation

was discharged on April 17, 2008, instead simply concluding that

Kraklio’s “maximum period of probation . . . has expired.” Because
 11

Kraklio failed “to obtain criminal relief on the grounds he alleged in his

legal malpractice action—i.e. that his probation . . . expired on April 17,

2008,” the dissent would conclude the district court did not err in

granting summary judgment.

We granted Simmons’s application for further review.

II. Standard of Review.

“We review grants of summary judgment for correction of errors at

law.” Barker, 875 N.W.2d at 161. “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.” Id. (quoting Amish Connection,

Inc. v. State Farm Fire & Cas. Co., 861 N.W.2d 230, 235 (Iowa 2015)). We

view the record in the light most favorable to the nonmoving party. Id.

III. Analysis.

This case requires us to determine whether a criminal defendant

suing his criminal defense attorney for legal malpractice over a

sentencing error must prove he obtained relief from the underlying

conviction. The court of appeals correctly noted that the case presents a

question of first impression in Iowa.

A. Iowa’s Relief-Required Rule. A plaintiff must prove the

following elements to recover for legal malpractice arising from either civil

or criminal representation:

(1) the existence of an attorney–client relationship between
the defendant and plaintiff giving rise to a duty; (2) the
attorney, by either an act or a failure to act, breached that
duty; (3) this breach proximately caused injury to the
plaintiff; and (4) the plaintiff sustained actual injury, loss, or
damage.

Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997). We have recognized

an additional requirement for clients suing their criminal defense

attorney for malpractice: a criminal defendant must “achieve relief from a
 12

conviction before advancing a legal malpractice action against his former

attorney.” Trobaugh, 668 N.W.2d at 583 (emphasis added). In Trobaugh,

the client blamed his conviction on his lawyer’s negligent representation.

Id. at 579. We explore that case in detail to see how the relief-required

rule should apply when the alleged malpractice relates to a sentencing

issue (here, the duration of supervised probation) rather than the

underlying conviction.

Charles Trobaugh was charged “with assault with intent to inflict

serious injury, assault with a dangerous weapon, and possession of a

firearm by a felon.” Id. Assistant County Attorney Patrick Sondag signed

the initial complaints against Trobaugh. Id. Sondag later was hired as

an assistant public defender in the same county and became Trobaugh’s

defense attorney in the same case. Id. Trobaugh eventually accepted a

plea agreement and pled guilty to displaying a dangerous weapon and

possession of a firearm by a felon. Id. Trobaugh was incarcerated for

eleven months. Id.

Trobaugh later was convicted of a federal drug offense. Id.

Trobaugh’s new attorney discovered that Sondag had signed the initial

complaint against Trobaugh and then represented him in his defense

against the same charges. Id. Trobaugh raised Sondag’s potential

conflict of interest as a ground for relief in a PCR action, which was

dismissed as time-barred. Id. Trobaugh filed another PCR application.

Id. This application was successful, and Trobaugh was granted a new

trial in November 2000. Id. He pled guilty to the charge of possession of

a firearm by a felon, but the two other charges were dismissed. Id.

Trobaugh then filed a claim for money damages with the State

Appeal Board under the Iowa Tort Claims Act, arguing that Sondag, as a

state employee, committed legal malpractice in his representation of
 13

Trobaugh. Id. After the board denied his claim, Trobaugh filed a civil

action against Sondag for legal malpractice. Id. at 579–80. Sondag

moved to dismiss the claim on multiple grounds, including that

Trobaugh’s tort claim was barred by the two-year statute of limitations in

Iowa Code section 669.13 (2001). Id. at 580. The district court

determined Trobaugh’s claims were untimely because they accrued in

June 1997 when Trobaugh first discovered Sondag’s potential conflict of

interest. Id. The court granted Sondag’s motion to dismiss, and

Trobaugh appealed. Id.

Trobaugh argued that his claim accrued when the PCR court

granted him a new trial. Id. at 581. Accordingly, his state tort claim was

timely. Id. Sondag, however, argued that Trobaugh’s malpractice claim

was time-barred because he discovered the alleged malpractice years

earlier when his new attorney discovered Sondag had worked on both

sides of the original criminal case. Id. We acknowledged that “our

resolution hinge[d] on whether a claim for legal malpractice in the

criminal case context can be discovered prior to the plaintiff receiving

relief from the conviction that allegedly resulted from negligent

representation.” Id. We analyzed the various approaches used by courts

in other jurisdictions, noting that some courts require relief from a

conviction before a criminal defendant can successfully sue a former

attorney for malpractice. Id. at 582. We explained that under this

“relief-required approach” a claim for malpractice accrues when relief

from a conviction is granted. Id. We acknowledged multiple policy

reasons for using the relief-required approach:

equitable principles against shifting responsibility for the
consequences of the criminal’s action; the paradoxical
difficulties of awarding damages to a guilty person;
theoretical and practical difficulties of proving causation; the
 14
potential undermining of the postconviction process if a legal
malpractice action overrules the judgments entered in the
postconviction proceedings; preserving judicial economy by
avoiding relitigation of settled matters; creation of a bright
line rule determining when the statute of limitations runs on
the malpractice action; availability of alternative
postconviction remedies; and the chilling effect on thorough
defense lawyering.

Id. (quoting Canaan v. Bartee, 72 P.3d 911, 916 (Kan. 2003)).

We also recognized that some courts do not require a criminal

defendant to obtain relief from a conviction before bringing a legal

malpractice claim. Id. Rather, “a claim for legal malpractice is found to

accrue before relief from a conviction is achieved, often upon the

discovery of the facts related to the attorney’s negligent conduct.” Id.

But we concluded “that the approach that requires a defendant to

achieve relief from a conviction before advancing a legal malpractice

action against his former attorney is superior in this particular area of

the law.” Id. at 583. We held that a claim for legal malpractice arising

from a criminal case does not accrue until relief from a conviction is

obtained. Id.

In Trobaugh, we “avoid[ed] the question of what role, if any, the

plaintiff’s guilt or innocence plays in advancing a claim for legal

malpractice.” Id. at 583 n.4. That question was squarely presented in

Barker. Robert Barker placed graffiti in a public restroom, “inviting

young males interested in oral sex to contact a certain email address.”

Barker, 875 N.W.2d at 158. Public complaints about the graffiti

prompted law enforcement to investigate. Id. An Iowa Division of

Criminal Investigation agent posed as a fifteen-year-old male “Jayson”

and established online contact with Barker, who arranged to meet

“Jayson” for sex. Id. When Barker arrived at the arranged location, he

was arrested. Id. The state charged him with attempted enticement of a
 15

minor and lascivious acts with a child. Id. The court later granted the

state’s request to amend the second count to solicitation of a minor to

commit a sex act. Id.

Barker agreed to plead guilty to the amended charge of solicitation

of a minor. Id. The state agreed to dismiss the count of attempted

enticement and recommend a suspended sentence and probation on the

condition that Barker complete sex offender treatment through a

residential treatment facility. Id. Barker consulted with his attorney,

Thomas Magee, about whether to plead guilty. Id. at 159. Magee later

closed his law office and withdrew from further representation, and the

district court appointed Donald Capotosto to represent Barker. Id.

After Barker’s plea and sentencing hearing, the district court

sentenced him to five-year’s imprisonment, suspended the sentence, and

placed Barker on probation for the duration of his sentence. Id. The

sentencing order prohibited Barker from engaging in unsupervised

contact with minors and provided that all internet access had to be

preapproved by Barker’s probation officer. Id. The order allowed Barker

to complete outpatient sex offender treatment through Catholic Charities

rather than mandating commitment to a residential treatment facility.

Id.

Barker failed to comply with the treatment services at Catholic

Charities and was discharged from its program. Id. A home visit

revealed that Barker violated his probation through unauthorized

internet use and “had images of young males on his computer.” Id. The

district court ordered Barker into a residential treatment facility once

space became available, and Barker was admitted to the facility in

March 2008. Id. He was unsuccessfully terminated from the residential

treatment facility, and the district court revoked Barker’s probation “and
 16

sentenced him to imprisonment for a term not to exceed five years with

credit for time served.” Id. at 159–60.

“Barker filed an application for postconviction relief from his

conviction for solicitation of a minor.” Id. at 160. He claimed 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.” Id. The district

court granted the application on February 28, 2011, reasoning that

Barker would have had to solicit someone else to commit the actual

crime and that Barker had not done so. Id. 2 The district court vacated

Barker’s conviction and sentence, concluding that Barker’s counsel failed

to perform an essential duty and the defendant was prejudiced by the

conviction entered upon the defective plea. Id.

Barker filed a malpractice action alleging that Magee and

Capotosto negligently advised him to plead guilty to an offense without a

factual basis. Id. The defendant lawyers moved for summary judgment,

arguing that Barker must prove his actual innocence and could not

establish that he was factually innocent in the underlying criminal case. 3

Id. The district court granted summary judgment, concluding that

actual innocence must be established. Id.

2As we noted in Barker,
The 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.
875 N.W.2d at 158 n.1.
3Barker did not dispute that his conduct amounted to attempted enticement of a
child, as charged in the original trial information. Barker, 875 N.W.2d at 160.
 17

On appeal, we considered the approaches of other courts regarding

whether proof of actual innocence is required when a criminal defendant

sues his defense attorney for malpractice. See id. at 161–67. We noted

that a majority of jurisdictions which have considered the issue adopted

an “actual innocence” requirement. Id. at 161. We identified the

rationales for the actual-innocence requirement, including that it would

violate public policy to allow a person to profit from participation in

illegal acts and that requiring “actual innocence prevents the former

criminal defendant from shifting the responsibility for his or her

conviction.” Id. at 163.

We next considered the Alaska approach, which allows the

criminal defense attorney to raise actual guilt as an affirmative defense to

the malpractice suit. Id. at 164 (citing Shaw v. State, 861 P.2d 566, 572

(Alaska 1993)). The criminal defense attorney is required to prove the

former client’s guilt by a preponderance of the evidence but is not limited

to evidence admissible in the criminal case. Id.

Finally, we considered the approach of courts that have rejected

the actual-innocence requirement. See id. at 164–67. We specifically

examined Mashaney, in which the Kansas Supreme Court declined to

adopt the actual-innocence requirement. Id. at 165. The Mashaney

court gave several reasons, including that, regardless of innocence, a

criminal defendant is legally injured by being convicted and imprisoned if

his or her defense 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.” Id. (quoting Mashaney, 355 P.3d at 684).

Courts analyze an actual innocence requirement as a component

of proximate cause. “Underlying the . . . requirement . . . that [a] plaintiff

must have obtained postconviction relief . . . is the principle that absent
 18

relief from a conviction or sentence, the criminal plaintiff’s own actions

are presumably the proximate cause of his injury.” Jones v. Link, 493

F. Supp. 2d 765, 769 (E.D. Va. 2007); cf. Mashaney, 355 P.3d at 674

(“[U]ntil a plaintiff has been exonerated, his or her criminal conduct and

not his or her attorney’s negligence is the proximate cause of his or her

incarceration.” (quoting Canaan, 72 P.3d at 920–21). The Oregon

Supreme Court, in adopting the “exoneration rule,” explained that “while

the conviction and sentence remain valid for all other purposes, it is

inappropriate to treat a complaining convicted offender as having been

‘harmed’ in a legally cognizable way by that conviction.” Stevens v.

Bispham, 851 P.2d 556, 562 (Or. 1993) (en banc).

In Barker, we declined to follow the majority rule requiring actual

innocence and, instead, relied on the causation provision in section 53 of

the Restatement (Third) of the Law Governing Lawyers. 875 N.W.2d at

165–66. A comment to that provision states,

A convicted criminal defendant suing for malpractice must
prove both that the lawyer failed to act properly and that,
but for that failure, the result would have been
different . . . . Although most jurisdictions addressing the
issue have stricter rules, under this Section it is not
necessary to prove that the convicted defendant was in fact
innocent. 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.

Restatement (Third) of the Law Governing Lawyers § 53 cmt. d, at 392

(Am. Law. Inst. 2000) (emphasis added). We found the approach of the

Restatement (Third) to be persuasive. Barker, 875 N.W.2d at 166. We

held that a criminal defendant is not required to prove actual innocence

before bringing a malpractice claim against a former defense attorney.

Id. at 168. But we emphasized that the malpractice plaintiff must obtain
 19

judicial relief from the avoidable conviction blamed on the malpractice,

as set forth in Trobaugh. Id. at 166. Importantly, neither Barker nor

Trobaugh involved malpractice premised on a sentencing error rather

than the conviction.

B. Application of the Relief-Required Rule to a Sentencing

Error. We now must determine whether Trobaugh and Barker require

Kraklio to prove he obtained relief from his underlying conviction.

Kraklio argues those cases are inapplicable because “the facts in those

matters are not similar to the facts in this case and the claim is not

based on the same issues.” Kraklio does not deny he committed the

crime. He does not argue that he was wrongfully convicted. Instead,

Kraklio argues that he should be able to sue Simmons for malpractice

based on Simmons’s failure to ensure that Kraklio was released from

probation on April 17, 2008. Kraklio argues that he is not required to

show relief from his conviction, but need only prove the elements of legal

malpractice set forth in Huber, 568 N.W.2d at 790 (“(1) the existence of

an attorney–client relationship between the defendant and plaintiff giving

rise to a duty; (2) the attorney, by either an act or a failure to act,

breached that duty; (3) this breach proximately caused injury to the

plaintiff; and (4) the plaintiff sustained actual injury, loss, or damage”). 4

Simmons, on the other hand, urges us to require relief from the

conviction under Trobaugh and Barker and hold that the district court

correctly granted summary judgment because Kraklio obtained no relief

from the conviction underlying his sentence of probation. And Simmons

4Other courts have equated the elements of proof for legal malpractice claims
arising from criminal and civil representation. See, e.g., Krahn v. Kinney, 538 N.E.2d
1058, 1061 (Ohio 1989) (collecting cases and holding that the elements of proof for legal
malpractice are the same regardless of whether the action arises from civil or criminal
representation).
 20

argues that Kraklio failed to preserve error by not presenting the district

court with any legal authority suggesting that the relief-required rule

should be changed or any policy arguments on why the rule should not

apply to his case. Kraklio, however, did argue that “[t]he claims in this

case are not similar to” Barker and Trobaugh. We conclude that Kraklio

preserved error. See Estate of Gottschalk v. Pomeroy Dev., Inc., 893

N.W.2d 579, 585 (Iowa 2017) (explaining that the error preservation rule

requiring a party to raise and obtain a decision on an issue in district

court before an appellate court decides the issue “serves the purpose of

ensuring both opposing counsel and the district court receive notice of

the basis for a claim at a time when corrective action is still possible”).

We conclude Barker and Trobaugh are distinguishable because the

malpractice in those cases led to an avoidable conviction while Kraklio

claims Simmons missed the opportunity to end his probation sooner

without blaming him for the underlying conviction. We follow the

Restatement (Third) of the Law Governing Lawyers, section 53, as we did

in Barker. This means Kraklio must show relief from the duration of his

supervised probation, not the underlying conviction. Garcia, correctly

applied here by our court of appeals, illustrates how the relief-required

rule works in this situation. See 363 P.3d at 406–07. George Michael

Garcia’s legal malpractice claim related to an illegal sentence rather than

a wrongful conviction. Id. Garcia was ordered to serve postrelease

supervision following his prison term, even though this was prohibited by

a Kansas statute. Id. at 401–02. Garcia’s attorney, Charles Ball, did

nothing to correct Garcia’s sentence, even after being notified of the

mistake by the Kansas Department of Corrections. Id. at 402. While

Garcia was serving this unlawful postrelease supervision, he was

charged with burglary, pled guilty, and was incarcerated. Id. Because
 21

he committed the burglary while on postrelease supervision, Garcia was

subject to a sentencing rule that required him to serve the remaining

part of his postrelease supervision term in prison. Id. Garcia contacted

Ball multiple times to inform him of the mistake, but Ball took no action.

Id. Garcia filed a pro se motion to correct an illegal sentence, and the

court entered a nunc pro tunc order that released him from prison. Id.

The Kansas Supreme Court held that Garcia was not required to

prove he was actually innocent of the crimes for which he was convicted

but instead “was required to obtain post-sentencing relief from the

unlawful sentence.” Id. at 408. The Garcia court determined that this

occurred “when the district court acknowledged that it had imposed an

illegal sentence by entering a nunc pro tunc order, setting aside the

illegal postrelease supervision term.” Id.

We agree with Garcia’s reasoning, which correctly applies the

Restatement (Third) approach. We hold that a criminal defendant suing

his defense lawyer over a sentencing error must obtain postjudgment

relief on the sentencing issue, but need not prove relief from the

underlying conviction. See id.; see also Jones, 493 F. Supp. 2d at 769–

71 (requiring criminal defendant to allege he obtained postconviction

sentencing relief before suing his attorney for malpractice when the

criminal defendant “complains that his attorney’s negligence resulted in

a sentencing error”); 5 Johnson v. Babcock, 136 P.3d 77, 78 (Or. Ct. App.

5In rejecting the actual-innocence requirement in that circumstance, the Jones
court described a hypothetical situation that mirrors Kraklio’s situation:
[I]t is appropriate to examine the consequences of a contrary holding in a
situation not presented here, namely where an attorney’s negligence
resulted in a legally impermissible sentence that is not corrected until
after plaintiff has already served a longer sentence than legally
warranted. In such a case, any available appellate, post-conviction, or
habeas corpus remedies would not sufficiently redress plaintiff’s injury,
that is his unlawfully prolonged incarceration, and in these
 22

2006) (holding that it is sufficient for criminal defendant to allege that

defense attorney’s negligence resulted in a sentencing error and that

defendant obtained postconviction sentencing relief).

Similarly, the New Hampshire Supreme Court held the malpractice

plaintiff need not prove actual innocence when suing over a sentencing

error. Hilario v. Reardon, 960 A.2d 337, 345 (N.H. 2008). Jose Hilario

was indicted on several charges and pled guilty to all of them. Id. at 339.

The plea agreement provided that the state would petition for suspension

of part of his sentence if Hilario cooperated in other prosecutions. Id.

Hilario’s attorney, Neil Reardon, filed a motion to withdraw Hilario’s plea

regarding some of the charges, allegedly without Hilario’s authorization

or knowledge. Id. The motion was denied. Id. When Hilario later filed a

motion to suspend part of his sentence pursuant to the plea agreement,

the state objected, arguing that Hilario breached the plea agreement by

attempting to withdraw his plea. Id. Hilario sued Reardon for

malpractice based on his filing the motion to withdraw Hilario’s guilty

plea. Id.

Reardon argued that Hilario’s claim was barred by Mahoney v.

Shaheen, Cappiello, Stein & Gordon, P.A., 727 A.2d 996 (N.H. 1999). Id.

_______________________
circumstances, plaintiff’s “case [would be] more akin to that of an
innocent person wrongfully convicted than of a guilty person attempting
to take advantage of his own wrongdoing.” It follows then that like the
“innocent person wrongfully convicted due to inadequate representation
[he] has suffered a compensable injury [and] the nexus between the
malpractice and palpable harm is sufficient to warrant a civil action,
however inadequate, to redress the loss.” Thus, the actual innocence
requirement should not apply where plaintiff alleges that his attorney’s
negligence resulted in a sentencing error because to hold otherwise
would deprive a plaintiff subjected to an unlawfully prolonged
incarceration due to his attorney’s negligence of redress for his injury.
493 F. Supp. 2d at 770 (alterations in original) (first quoting Powell v. Associated
Counsel for the Accused, 129 P.3d 831, 833 (Wash. Ct. App. 2006); and then quoting
Wiley v. County of San Diego, 966 P.2d 983, 987 (Cal. 1998)).
 23

In Mahoney, the New Hampshire Supreme Court held that “a criminal

malpractice action will fail if the claimant does not allege and prove, by a

preponderance of the evidence, actual innocence.” 727 A.2d at 998–99.

The Hilario court noted, “In Mahoney and other cases applying similar

standards, courts are generally concerned with malpractice actions that,

even if they do not directly challenge the underlying conviction, tend to

undermine or indirectly challenge it.” 960 A.2d at 343. The Hilario court

concluded,

[W]here the alleged legal malpractice occurred after the plea
and sentencing, where the claim is unrelated to any strategic
or tactical decision relating to the plaintiff’s convictions, and
where the plaintiff does not argue that but for his attorney’s
negligence he would have obtained a different result in the
criminal case, the legal malpractice action is not barred by
Mahoney.

Id. at 345. The court found Mahoney distinguishable because

the malpractice alleged does not challenge [Hilario’s]
convictions and is not an argument that if his attorney had
acted differently, a different result would obtain. He has not,
and does not now, challenge any tactical or strategic decision
bearing upon his convictions.

Id. at 343. The New Hampshire Supreme Court later characterized

Hilario as “limited to those situations where the client’s malpractice

claims are unrelated to underlying guilt or innocence.” Gaylor v. Jeffco,

999 A.2d 290, 293 (N.H. 2010).

These cases reflect the Restatement (Third) position we adopt

today. Because Kraklio does not allege Simmons negligently caused his

conviction, Kraklio need not prove relief from that conviction. But the

relief-required rule still applies to the alleged sentencing error. That is,

Kraklio must prove he obtained relief from his period of supervised

probation that he claims Simmons should have ended sooner. See

Restatement (Third) of the Law Governing Lawyers § 53, at 389 (“A
 24

lawyer is liable . . . only if the lawyer’s breach of a duty of care or breach

of fiduciary duty was a legal cause of injury, as determined under

generally applicable principles of causation and damages.”); id. reporter’s

note cmt. d, at 397–98 (collecting cases holding collateral relief from the

conviction is not required when the malpractice plaintiff does not

challenge the conviction); see also Johnson, 136 P.3d at 80 (“An unlawful

restraint of liberty can constitute harm . . . .”); Powell v. Associated

Counsel for the Accused, 129 P.3d 831, 833 (Wash. Ct. App. 2006) (“His

unlawful restraint beyond th[e maximum] period [allowed by law] was not

a consequence of his own actions.”).

The district court hearing Kraklio’s revocation challenge ruled that

his probation actually had ended while he was incarcerated for the

probation violation. We conclude this ruling constituted sufficient relief

from the alleged sentencing error to avoid summary judgment under the

relief-required rule. 6

Simmons acknowledges that his alternative grounds for summary

judgment are not at issue on this appeal. Those may be addressed by

the district court on remand.

IV. Disposition.
For these reasons, we affirm the decision of the court of appeals.

We reverse the district court’s summary judgment and remand the case

for further proceedings.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT SUMMARY JUDGMENT REVERSED AND CASE REMANDED.

6We disagree with the dissent on the court of appeals that would find this claim
barred because the revocation court failed to specify the exact date the probation period
expired.