Aggressive Advocates For Your Rights

Kornicki v. Cherniack: Discussing Credit Only When Credit is Due

It is a well-known fact that often when a criminal is stuck in jail, he will think of any way they can try to free them themselves, including sue his attorney, even if that attorney fought as hard as she could.

In Kornicki v. Cherniack, the criminal tried to argue that his attorney committed legal malpractice. However, Kornicki's case was dismissed on preliminary objections and with prejudice. 2006 WL 6049500 (Pa.Com.Pl. 2006). However, Kornicki appealed that ruling.

Christopher Kornicki pled guilty to two counts of indecent assault and corrupting the morals of minors on May 22, 1989. Once freed, he was then arrested again and was found to have violated his probation and sentenced to 7 to 14 years in prison in May of 2000. Then, in 2003, Emily Cherniack was appointed to represent the client. On behalf of her client, Cherniak filed a Post Conviction Relief Act (PCRA) petition which was denied by the court. The client then sued Cherniak for legal malpractice, claiming that she was negligent because she failed to raise the issue of credit for time served in the client's PCRA petition.

The Court of Common Pleas upheld the preliminary objects, agreeing with the lower court that there really was nothing else the attorney could do. Sometimes, even if the result is not the best, the attorney could not have done anymore for the client.

It is still an up-hill battle for the criminal to show malpractice. In order to sustain a malpractice action, the criminal must establish five elements: "(1) the employment of the attorney; (2) reckless or wanton disregard of the criminal defendant's interest by the attorney; (3) that "but for" the attorney's conduct, the plaintiff (criminal defendant) would have obtained an acquittal or complete dismissal of the charges; (4) the existence of damages; and that (5) the plaintiff (criminal defendant) has pursued post-trial remedies and obtained relief which was dependent on attorney error." Bailey v. Tucker, 533 Pa. 237, 250-51, 621 A.2d 108, 115 (1993).

In the immediate case, the Court of Common Pleas did not go through the analysis. The court believed it was clear that the attorney had not committed malpractice. Even though she was not not able to completely help her client, the court did not feel that her actions were elevated to the level of malpractice.

The lesson is that some times an attorney, who tried to do everything for her client she could, can still be sued for malpractice if there was something wrong with how she attempted to defend that client. Even good attorneys can do wrong.

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