On May 19, 2026, the Philadelphia Inquirer published an article titled Advocate to Adversary, detailing the results of an investigation by the Inquirer and ProPublica, which found that 250 convictions in violent felony cases had been reversed in the Philadelphia Court of Common Pleas between 2018 and 2026. The article focused on habeus corpus petitions filed under Pennsylvania’s Post Conviction Relief Act (PCRA), a statute that allows persons convicted of crimes to raise new evidence concerning either the crime itself or the litigation process (including negligence by counsel at trial). The news organizations focused upon the role of court-appointed attorneys who review pro se PCRA petitions and who, in many instances, submit “no merit” letters opining there are no justicable legal issues presented. The investigation concluded that “no merit” letters were submitted in 50 of 250 reversals.

As a Pennsylvania legal malpractice attorney, this decision resonates with me for a few reasons. While in law school, I clerked for a Philadelphia County Judge who was assigned to review a backlog of PCRA petitions. The law at that time did not limit the number of petitions that could be filed, and some incarcerated persons would submit new petitions yearly. The signal-to-noise ratio of refiled petitions had the potential of drowning out meritorious issues. At that time, the court appointed attorneys to review first-time petitions, and some selected later petitions to provide additional analysis. I still recall the great effort made to provide meaningful, if not in-depth, review of the unending mountain of filings received from convicted prisoners in the Commonwealth.

The Inquirer article also brought to mind Pennsylvania’s limitation on attorney liability in professional negligence cases. Under Bailey v. Tucker, the Pennsylvania Supreme Court held, in part, “a plaintiff will not prevail in an action in criminal malpractice unless, and until, he has pursued post-trial remedies and obtained relief, which is dependent upon attorney error; additionally, although such finding may be introduced into evidence in the subsequent action, it shall not be dispositive of the establishment of culpable conduct in the malpractice action.” 533 Pa. 237, 247, 621 A.2d 108, 115 (1993). The criminal claimant is further required to prove, by a preponderance of the evidence, that they were innocent of both the convicted offense “or any lesser included offense.” Id. at 247. Pennsylvania’s exoneration and innocence limitations only apply to claims sounding in tort. Under Bailey, a client in a criminal defense case may pursue a claim in contract to recover monies paid to an attorney for unperformed work. 

Other states have similar exoneration and innocence requirements for legal malpractice cases sounding in tort. In Coscia v. McKenna & Cuneo, the California Supreme Court held both that exoneration is a prerequisite to pursing a legal malpractice action as well as proof of actual innocence. 25 Cal.4th 1194, 1197-1998, 25 P.3d 670 (Cal. 2001). Both clearing a conviction and establishing the absence of criminal conduct are separately required. Alaska also follows this approach of requiring exoneration of the underlying case and proof “by a preponderance of the evidence” that the claimant would not have been convicted but for the actions of trial counsel (called “the trial within a trial” requirement). Shaw v. Department of Admin., 861 P.2d 566, 572-573 (Ak. 1993).

The innocence requirement has been upheld in many jurisdictions, even where defense counsel failed to prevent the entry of a later-vacated conviction or sentence whose procedural flaws were allegedly the result of attorney-error. Skindzelweski v. Smith, 944 N.W.2d 675 (Wi. 2020)(client whose criminal conviction was vacated due to expired statute of limitations could not sue trial counsel for failing to raise defense due to uncontested admission of guilt); Piris v. Kitching, 375 P.3d 627 (Wa. 2016)(claimant who served additional prison time due to counsel’s failure to challenge miscalculation of sentence formula cannot succeed in malpractice action unless he can establish actual innocence of crime).

The application of exoneration and innocence requirements vary by state, however, as spectacularly illustrated by the case of Moore-Reed v. Griffin, 581 P.3d 949 (Or. 2025). In Moore-Reed, the client made a video of her abusive uncle’s death, but the police were unaware of this, and she was charged with manslaughter and released on bail. 581. P.3d at 599. The client/defendant told her court-appointed defense counsel about the video, which counsel forwarded to the prosecution without her consent. The client/defendant was then charged with first-degree murder, her bail was revoked, and she was the subject of a Dateline NBC profile.

The murder charge was then dismissed, and the client pled guilty to second-degree manslaughter. Id. The Oregon Supreme Court held that while exoneration and innocence are requirements to recover in a legal malpractice action under Oregon law, the summary judgment dismissal of the client’s malpractice action was in error because she alleged claims that were not related to her criminal conviction (i.e. pre-trial detention, emotional distress from pre-trial prosecution, and loss of reputation). Exoneration was not required because “a reasonable jury could find that the defendant's negligence caused at least some harm unrelated to the harm that she suffered from her manslaughter conviction …” Id. at 605. While conviction of a “lesser included offense” of manslaughter would have been fatal to a legal malpractice case in Pennsylvania, it does not, as a matter of law, preclude a recovery in Oregon.

In the Pennsylvania PCRA context, the Inquirer article questions the efforts of the court-appointed PCRA counsel and promises additional coverage of specific cases. The article specifically notes that some “no merit” reviews occurred prior to the discovery of exculpatory evidence. In any event, while none of the work by court-appointed PCRA petition attorneys resulted in convictions, at a minimum, they delayed the investigation and re-opening of cases. Client claimants will still be required to prove their innocence by a preponderance of the evidence under Pennsylvania’s “case-within-a-case” standard and related damages. Whether this coverage prompts an increase in malpractice filings in the Commonwealth remains to be seen.