## Facts

- Hilary Marek Winniczek faced federal charges arising from a scheme to help people fraudulently obtain commercial drivers’ licenses.
- He initially retained another attorney, but Sheldon B. Nagelberg allegedly persuaded the Winniczeks to discharge prior counsel and hire him, claiming prior counsel lacked federal-criminal experience.
- Nagelberg allegedly represented that Winniczek had a good defense, estimating $150,000 in fees plus $20,000 in expenses to present it.
- The Winniczeks paid Nagelberg $170,000 over about a year before the scheduled trial.
- After being fully paid, Nagelberg allegedly stated he would not take the case to trial because Winniczek’s earlier statements to authorities eliminated any viable defense and that Winniczek had to plead guilty.
- Nagelberg allegedly withdrew from the matter; different counsel handled the plea, and Winniczek pleaded guilty and received a 22-month sentence.
- The complaint sought relief under Illinois law for breach of contract, legal malpractice (professional negligence), and breach of fiduciary duty, including recovery of the $170,000 based on overcharging and charging for services not rendered.
- Winniczek did not allege he was innocent of the crimes of conviction.

## Issues

1. Whether Illinois’s “actual innocence” requirement for criminal-defense malpractice bars recovery when the plaintiff does not allege innocence.
2. Whether the actual-innocence rule also bars claims styled as breach of contract or breach of fiduciary duty when the gravamen is restitution for unearned fees or charges for services not provided.
3. Whether the complaint plausibly stated non-malpractice claims for return of fees sufficient to survive a Rule 12(b)(6) motion.

## Decision

- The Seventh Circuit affirmed dismissal of the legal-malpractice theory because the plaintiff did not allege actual innocence, a prerequisite under Illinois law for conviction-related malpractice damages.
- The court reversed the dismissal in part and remanded, holding the complaint plausibly stated non-malpractice claims seeking return of fees allegedly obtained or retained for services not performed or not intended to be performed.
- The court distinguished between claims whose injury is conviction/imprisonment (barred absent innocence) and claims seeking restitution for wrongful fee extraction or retention (not barred by the innocence rule).

## Legal Principles

- Under Illinois law, a criminal defendant suing former defense counsel for malpractice must prove actual innocence; proof of deficient performance and a hypothetical “better outcome” on technical grounds is insufficient.
- Courts look to the substance of the claim and the nature of the injury and damages sought; relabeling a conviction-related malpractice claim as “contract” or “fiduciary duty” does not avoid the actual-innocence requirement.
- Claims seeking restitution or disgorgement of legal fees based on allegations of overcharging, charging for unperformed work, or taking payment for a representation the lawyer would not carry out may proceed without proof of actual innocence because they do not attack the validity of the conviction.
- In diversity cases, federal courts apply state substantive law and must determine how the state would treat the asserted theories and remedies.

## Conclusion

The court held that Illinois’s actual-innocence requirement bars a guilty defendant’s attempt to recover malpractice damages tied to conviction and imprisonment, but it does not categorically foreclose contract or fiduciary-duty claims seeking return of allegedly unearned or wrongfully obtained legal fees; those fee-based claims were remanded for further proceedings.


Winniczek v. Nagelberg, 394 F.3d 505 (7th Cir. 2005)