*489¶21 (dissenting) — I dissent because the malpractice standard for criminal cases should be the same as civil. There is no reason to invite malpractice in criminal cases by heightening the plaintiff’s burden to prove postconviction relief and actual innocence. In every situation a client should rightfully expect competent legal representation.
Sanders, J.¶22 We have clearly stated the standard for legal malpractice:
To establish a claim for legal malpractice, a plaintiff must prove the following elements: (1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney’s breach of the duty and the damage incurred.
Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992). This rule does not suggest the additional requirements the majority adds to cases of criminal malpractice, namely, postconviction relief and proof of actual innocence. I see no reason to add them.
¶23 The majority cites a Court of Appeals case, Falkner v. Foshaug, 108 Wn. App. 113, 29 P.3d 771 (2001), to support additional elements. Majority at 482. The Court of Appeals opinion in Falkner is not binding authority, nor is case law from other jurisdictions upon which Falkner is based. See Falkner, 108 Wn. App. at 118-19 & nn.8-13. Nor am I persuaded by its logic. Attorneys who negligently represent their clients should be responsible for any harm that results from the misconduct. It does not matter if the subject matter of the case is civil or criminal. Forcing criminal defendants to prove actual innocence does not serve any purpose except to frustrate the client’s right to competent representation.
¶24 Citing a “public policy” present in the minds of the individuals in the majority, the majority argues the defen*490dant’s acts should be viewed as the cause of any harm unless he demonstrates his innocence. Majority at 484-85. However, our constitution sets the “public policy” which entitles criminal defendants to adequate representation. I prefer that policy as my guide.
¶25 The issue is causation. Under our precedent, cause in fact is determined by the jury as a question of fact. Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985). Cause in fact is a minimum threshold that asks but for the lawyer’s negligence would the client have been harmed. In other words, would the result be different if the lawyer had used reasonable care? See Daugert v. Pappas, 104 Wn.2d 254, 258, 704 P.2d 600 (1985) (“In effect the second trier of fact will be asked to decide what a reasonable jury or fact finder would have done but for the attorney’s negligence.”).
¶ 26 Legal causation is a subsequent inquiry, asking as a matter of law whether liability should attach. Hartley, 103 Wn.2d at 779. The majority argues a criminal defendant should not profit from his crimes, and hence the defense attorney should not be liable for his negligence unless the defendant first proves his own innocence. Majority at 485.1 disagree. The criminal defendant is equally entitled to competent representation, and the negligent attorney should take responsibility for his malpractice. The majority’s rule simply invites malpractice since the defense attorney knows he is held to a lower standard. Proving innocence is impossible since a negative cannot be proved.5
¶27 Here the Angs’s defense attorneys, Michael Martin and Richard Hansen, recommended a particular plea agreement. The Angs initially agreed but later withdrew the plea on recommendation from new counsel and were acquitted on all charges at a subsequent trial. They sued their former defense attorneys and a jury found that Martin alone was negligent, even though it found the Angs had not proved *491their innocence by a preponderance of the evidence. Since the latter consideration should be irrelevant, Martin should bear the responsibility for his negligence. I would reverse as to Martin, and remand for a trial on damages.
¶28 I dissent.
Other jurisdictions have not added new elements to claims of criminal malpractice. See, e.g., Mylar v. Wilkinson, 435 So. 2d 1237 (Ala. 1983); Silvers v. Brodeur, 682 N.E.2d 811 (Ind. Ct. App. 1997); Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994); Duncan v. Campbell, 1997 NMCA 28, 123 N.M. 181, 936 P.2d 863; Krahn v. Kinney, 43 Ohio St. 3d 103, 538 N.E.2d 1058 (1989).