Coscia

McINTYRE, J.

In Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545 , 79 Cal.Rptr.2d 672 , 966 P.2d 983 (Wiley ), our Supreme Court held that proof of actual innocence of underlying criminal charges is an element of a malpractice claim against criminal defense counsel. The issue here, left unresolved in Wiley , is whether a further requirement of a criminal malpractice action is that the conviction has been set aside through appeal or other post-conviction proceeding. The majority of out-of-state courts presented with the question have answered affirmatively, variously citing public policy, collateral estoppel or causation principles.

In our view, we are precluded from adopting the majority rule regardless of its substantive merits. As discussed by Justice Werdegar in her concurring opinion in Wiley , under the Supreme Court's interpretation of Code of Civil Procedure (all statutory references are to this code) section 340.6, a post-conviction relief requirement would bar most criminal malpractice actions on statute of limitations grounds. The court has held the one-year limitations period of section 340.6 is not subject to equitable tolling, and the period is not…