Wrongly convicted criminal defendant can sue lawyer for fraud but not for breach of contract
Jerry Ray Demorest sued Ronald R. Gold and his law office after Gold substituted one associate for another in defending Demorest against a Criminal Sexual Conduct charge. Although Demorest was convicted, his conviction was reversed on appeal because he had been denied adequate assistance of counsel, and the Prosecutor chose not to pursue the claim after the appeal and reversal.
The attorney and client had signed a fee agreement in which Gold represented that his firm would provide an attorney who "possessed experience and expertise in handling CSC I cases." Instead, when the associate who was initially managing the claim left the firm, an inexperienced attorney was assigned. Since Gold had made special promises apart from a general representation agreement, he was required to answer for the truth of those representations.
The client could not pursue a general malpractice claim because the statute of limitations for professional malpractice had expired. He could not pursue a contract claim because contract actions for malpractice, generally, are subsumed under the tort theories necessary to prove negligence.