Bird, Marella, Boxer & Wolpert v. Superior Court

Under our Supreme Court’s holding in Wiley v. County of San Diego, a convicted criminal defendant must allege actual innocence in order to state a cause of action for legal malpractice against former defense counsel. The issue before us is whether a convicted criminal defendant must allege actual innocence in order to state a cause of action against former defense counsel for breach of contract and related torts arising from a fee dispute between the parties.

When the primary rights asserted in the complaint are the rights to be billed in accordance with specific contractual provisions and to be free from unethical or fraudulent billing practices on the part of defense counsel, we hold a criminal defendant client need not allege actual innocence in order to state a cause of action for breach of contract, breach of fiduciary duty, fraud and money had and received.

Facts and Proceedings Below

Plaintiff John J. Reiner brought this action against his former attorneys, Bird, Marella, Boxer & Wolpert, and individuals at that firm alleging breach of written contract, breach of fiduciary duty, fraud, and money had and received. For purposes of reviewing a demurrer we accept as…