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Paulsen v. Cochran

Case Date: 03/14/2005
Court: 1st District Appellate
Docket No: 1-04-1325 Rel

FIRST DIVISION
March 14, 2005



 

No. 1-04-1325

MICHAEL PAULSEN,

             Plaintiff-Appellant,

                          v.

JOHNNIE COCHRAN, THE COCHRAN FIRM, JAMES
D. MONTGOMERY and ANTHONY SCHUMAN,

            Defendants- Appellees.

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)		 Appeal from
the Circuit Court
of Cook County

No. 03 L 11423


Honorable
Joseph N. Casciato,
Judge Presiding.


PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Plaintiff Michael Paulsen appeals the dismissal of his legal malpractice action against defendants Johnnie Cochran and James D. Montgomery of the Cochran law firm, and Anthony Schuman (also written Schumann), an attorney who is not with the Cochran firm. The complaint arose from the representation and sentence Paulsen received when he pled guilty to a drug offense in Arizona. The trial court dismissed Paulsen's complaint on defendants' motion under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2002)). The trial court found that Paulsen had failed to plead and prove "actual innocence" as is required for a convicted person to state a cause of action for legal malpractice against his former criminal defense attorney.

Paulsen appeals. His primary question is whether the actual innocence rule applies when the alleged malpractice resulted in an unfair penalty, not an improper conviction. We affirm.

The record shows that Paulsen, a Chicago resident, was arrested and charged in Arizona in May 2002 with conspiracy to transport marijuana, a class 2 felony. Paulsen sought representation through the Chicago law office of the Cochran firm, where Montgomery is the managing attorney. The Cochran firm referred Paulsen to an attorney outside the firm, Anthony Schuman. Paulsen claims Schuman "subcontracted" the defense with Joel Schwartz, a Missouri attorney.

Of record is a plea agreement dated August 30, 2002, and signed by Paulsen, Schwartz and Anna M. Atencio, the prosecutor of Navajo County, Arizona. The agreement stated that Paulsen agreed to plead guilty under the following sections of the Arizona Criminal Code (Ariz. Rev. Stat.