Moore‑Reed v. Griffin: Limiting the Exoneration Requirement in Criminal‑Defense Malpractice to Conviction‑Based Harms

Court: Supreme Court of Oregon (En Banc)

Citation: 374 Or 596 (2025)

Date: December 18, 2025

Opinion by: Masih, J.

I. Introduction
II. Factual and Procedural Background
III. Summary of the Oregon Supreme Court’s Holding
IV. Precedents and Authorities Considered
V. The Court’s Legal Reasoning
VI. Simplifying the Key Legal Concepts
VII. Practical Impact and Future Implications
VIII. Open Questions and Issues for Remand
IX. Conclusion and Key Takeaways

I. Introduction

The decision in Moore‑Reed v. Griffin marks a significant clarification in Oregon’s law governing legal malpractice claims against criminal defense counsel. Since Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993), Oregon has required a criminal defendant who sues their lawyer for malpractice to show “exoneration” as a component of “legally cognizable harm” when the alleged injury is a wrongful conviction. Trial courts and practitioners often read Stevens broadly—sometimes as creating a near-blanket rule that any convicted person must be exonerated before suing their criminal defense lawyer for any malpractice.

Moore‑Reed rejects that overbroad reading. The court holds that the exoneration requirement applies only where the client claims that counsel’s negligence caused or contributed to the criminal conviction itself (or harms flowing from that conviction). When the plaintiff alleges distinct harms that are not caused by, or derivative of, the conviction—such as pretrial incarceration following an elevated charge or reputational harm from dissemination of client materials—Stevens does not bar the malpractice claim, even if the plaintiff remains convicted of some offense.

The case arises from extraordinary facts: a defense lawyer sent a client’s cellphone video of a shooting to the prosecutor without the client’s knowledge or consent, leading to a more serious murder indictment, revocation of bail, extended pretrial incarceration, and widespread publicity. The Oregon Supreme Court is careful not to decide whether that conduct breached the standard of care; instead, it addresses only whether the plaintiff’s lack of exoneration on her ultimate manslaughter conviction defeats her malpractice claim as a matter of law. It concludes that it does not.

II. Factual and Procedural Background

A. The underlying criminal case

Plaintiff, Aisling Tucker Moore‑Reed, shot and killed her uncle in front of her grandmother’s house.
She claimed that the uncle had abused her and exploited her grandmother financially.
Immediately before the shooting, plaintiff recorded a video of her uncle approaching the house on her cellphone; the video captured the shooting.
Police arrested her and seized the phone. Neither the officers nor the prosecutor examined the phone; they did not know the video existed. The phone was returned to plaintiff.
She was charged with first- and second-degree manslaughter and released on bail.

Approximately six months after arraignment on the manslaughter charges, the court appointed defendant Anthony Griffin as new criminal defense counsel, replacing the original appointed lawyer. Plaintiff told Griffin about the video and gave him her cellphone. He watched the video and then—critically—sent the video to the district attorney’s office without plaintiff’s knowledge or consent.

After viewing the video, the district attorney reconvened the grand jury, presented the video, and obtained a new indictment charging plaintiff with murder. In light of the new charge:

Her bail was revoked.
She was incarcerated pretrial for about 20 months.
Defendant withdrew from the representation, forcing plaintiff to obtain new counsel.

Ultimately:

The murder charge was dismissed.
Plaintiff pleaded guilty to second-degree manslaughter.

B. Plaintiff’s malpractice allegations

After her conviction, plaintiff sued Griffin for negligence (legal malpractice). She alleged that defendant was negligent in, among other things, sending the video to the prosecutor without her knowledge or consent. As a direct result of that negligence, she claimed:

She was charged with murder, leading to bail revocation and 20 months of pretrial incarceration.
She suffered economic harms:
- Lost wages during pretrial incarceration.
- Significantly higher attorney fees due to the more serious charge and the need to obtain new counsel.
She suffered noneconomic harms:
- Depression, suicidal thoughts and behaviors, despondency, and extreme emotional distress.
- Reputational damage and public ridicule because the video was widely disseminated, including through a Dateline NBC episode and podcast focusing on the video.

Defendant admitted some factual allegations but raised an affirmative defense that plaintiff had not suffered any “legally cognizable harm” because she had not been exonerated of her manslaughter conviction.

C. Summary judgment and appellate proceedings

Defendant moved for summary judgment on his affirmative defense, relying squarely on Stevens v. Bispham. He argued:

Under Stevens, a criminal defendant cannot sue defense counsel for professional negligence related to that representation unless the defendant has been “exonerated of the criminal offense” by reversal, post-conviction relief, or otherwise (316 Or at 238).
Plaintiff remained a convicted offender (second-degree manslaughter) and had not been exonerated of any crime.
Therefore, she had suffered no “legally cognizable harm” for purposes of a malpractice claim.

The trial court, feeling “constrained” by Stevens, granted summary judgment to defendant. It held that plaintiff lacked a cognizable malpractice claim because she had not been exonerated.

The Court of Appeals affirmed in a nonprecedential memorandum opinion. It quoted what it regarded as the “unequivocal” rule from Stevens:

“We hold that, in order for one convicted of a criminal offense to bring an action for professional negligence against that person's criminal defense counsel, the person must, in addition to alleging a duty, its breach, and causation, allege ‘harm’ in that the person has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.” (316 Or at 238)

The Court of Appeals reasoned that because plaintiff was “convicted of a criminal offense and claims that her attorney’s negligence contributed to her conviction,” she could not allege harm until she was exonerated. Plaintiff had not been exonerated of any crime, so her claim was doomed under Stevens.

The Oregon Supreme Court allowed review to decide whether a former criminal defendant must always allege exoneration to state a legally cognizable legal malpractice claim against her criminal defense lawyer. The court holds that the answer is no.

III. Summary of the Oregon Supreme Court’s Holding

A. Core holding

The court reverses the Court of Appeals and the circuit court, and remands. Its core holding is:

Stevens’s exoneration requirement applies only to malpractice claims in which the plaintiff alleges that defense counsel’s negligence caused or contributed to the criminal conviction and its conviction-based harms. It does not bar malpractice claims for harms that are unrelated to, and do not flow from, the conviction itself.

Because the summary judgment record, viewed in the light most favorable to plaintiff, contains evidence of harms unrelated to her manslaughter conviction—most notably:

being indicted for murder,
pretrial incarceration based on the murder charge, and
widespread dissemination of the cellphone video causing reputational and emotional harm—

a reasonable jury could find that defendant’s negligence caused legally cognizable harm independent of the conviction. Stevens therefore did not entitle defendant to summary judgment.

B. Continued adherence to Stevens

Plaintiff had invited the court to overrule Stevens. The court explicitly declines to do so:

It states that the Stevens rule—requiring exoneration where the alleged malpractice harm is the conviction—“continues to apply” and the court “continue[s] to adhere to” it.
Because the court holds that Stevens does not govern plaintiff’s independent, non-conviction-related harms, there is no need to revisit or overturn Stevens.
In any event, plaintiff had not made the sort of showing necessary to justify overruling precedent.

Thus, Moore‑Reed is not an overruling of Stevens; it is a limitation and clarification of its scope.

IV. Precedents and Authorities Considered

A. Stevens v. Bispham, 316 Or 221, 851 P2d 556 (1993)

1. Facts and issue in Stevens

In Stevens, the plaintiff had been convicted of robbery and other crimes and incarcerated for more than eight years. His convictions were later vacated after another person confessed. He sued his criminal defense lawyer for malpractice. The core issue was when his claim accrued for statute of limitations purposes—specifically, when he had suffered “harm” sufficient for a negligence claim.

The Stevens court framed the question this way:

“When is a person who has been convicted of a criminal offense deemed to have been ‘harmed’ by any negligence of defense counsel that the person alleges contributed to the person’s conviction?” (316 Or at 229, emphasis added)

2. Holding in Stevens

The court held that such a malpractice claim accrues when the conviction is overturned—that is, when the person has been “exonerated” through:

reversal on direct appeal,
post-conviction relief, or
other exonerating processes.

It articulated the rule in the widely-quoted passage:

“We hold that, in order for one convicted of a criminal offense to bring an action for professional negligence against that person's criminal defense counsel, the person must, in addition to alleging a duty, its breach, and causation, allege ‘harm’ in that the person has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.” (316 Or at 238)

3. Policy reasons in Stevens

The Stevens rule rests on three policy considerations, which play a central role in Moore‑Reed:

Oregon’s comprehensive criminal and post-conviction scheme.
- Oregon law provides extensive procedural protections for criminal defendants, including the right to competent counsel and the right to challenge convictions through direct appeal and post-conviction relief.
- The court in Stevens reasoned that where the alleged malpractice is constitutionally deficient representation leading to conviction, those criminal and post-conviction mechanisms are designed to vindicate such wrongs.
- It therefore considered it “inappropriate” to treat a conviction as legally cognizable malpractice “harm” unless the defendant first shows that counsel’s deficiency rose to the level that would warrant post-conviction relief.
Finality of convictions.
- Given the demanding proof burden in criminal cases and the protections afforded defendants, the court emphasized that convictions should be treated as settled unless overturned via established criminal and post-conviction procedures.
- Allowing malpractice suits that effectively assert wrongful conviction without successful post-conviction relief would undermine that finality.
“Better deal” concerns.
- The court sought to prevent suits claiming merely that, but for counsel’s alleged negligence, the defendant could have secured a “better deal” (lesser charges or lighter sentence) despite a legally valid conviction.
- It declined to treat a conviction that is valid and unchallenged in criminal/post-conviction proceedings as “harm” for malpractice purposes based solely on speculation about a more favorable outcome.

In Moore‑Reed, the Supreme Court emphasizes that all of the Stevens reasoning is expressly tied to situations where the alleged negligence “contributed to the person’s conviction.” (316 Or at 229)

B. Drollinger v. Mallon, 350 Or 652, 260 P3d 482 (2011)

Drollinger, though involving malpractice by post-conviction counsel rather than trial counsel, clarified key aspects of Stevens that inform Moore‑Reed.

1. Core point: two categories of damages

Drollinger recognized that not all malpractice damages hinge on whether a conviction is overturned:

For damages “associated with the conviction itself or with continued incarceration after conviction” (such as lost freedom or income), the plaintiff must plead and prove that effective counsel would have obtained post-conviction relief and that the plaintiff would have avoided reconviction and release from custody (350 Or at 667).
But for damages that do not depend on success in undoing the conviction—for example, unnecessary litigation costs occasioned by counsel’s negligence—no such showing of exoneration is necessary (id. at 668).

The court also explained that Stevens assumes the criminal/post-conviction framework can actually correct the harm at issue; where that framework cannot remedy the harm, the Stevens rationale weakens.

C. Other Oregon precedents

Lowell v. Wright, 369 Or 806, 512 P3d 403 (2022), and Eklof v. Steward, 360 Or 717, 385 P3d 1074 (2016):
- These cases supply the summary judgment standard under ORCP 47 C.
- The court must view the record in the light most favorable to the nonmoving party.
- Summary judgment is appropriate only if no objectively reasonable juror could return a verdict for the nonmoving party on the relevant issue.
Rowlett v. Fagan, 358 Or 639, 369 P3d 1132 (2016):
- Restates the elements of a negligence-based malpractice claim: duty, breach, causation, and resulting harm measurable in damages (id. at 649).
Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149, 843 P2d 890 (1992):
- Recognizes the duty of a lawyer in the attorney-client relationship “to act as a reasonably competent attorney in protecting and defending the interests of the client” (315 Or at 160).
- Moore‑Reed ultimately grounds plaintiff’s claim in that duty, not in any free-standing tort of “negligent prosecution.”

D. Oregon post-conviction statutes

The court analyzes several key statutes:

ORS 138.530(1) – Grounds for post-conviction relief
- Post-conviction relief is available where there has been, among other things, a substantial denial of constitutional rights in the proceedings resulting in conviction that “rendered the conviction void” (ORS 138.530(1)(a), emphasis added).
- Other grounds: lack of jurisdiction, unlawful or unconstitutional sentence, or unconstitutionality of the statute of conviction.
ORS 138.540(1) – Exclusivity
- Post-conviction proceedings are the “exclusive means” of challenging a conviction “and the proceedings upon which it is based.”
- Defendant argued that allowing plaintiff’s malpractice action would undercut that exclusivity.
ORS 138.520 – Available remedies in post-conviction proceedings
- Authorizes remedies such as release, new trial, modification of sentence, and “such other relief as may be proper and just.”
- The court notes that none of these remedies could realistically address the harms plaintiff alleges here (e.g., past pretrial detention on a dismissed charge; worldwide reputational harm from publication of a video).

These statutes frame the interplay between the criminal/post-conviction system and civil malpractice actions—a central concern in Stevens and in the limitation adopted in Moore‑Reed.

V. The Court’s Legal Reasoning

A. The procedural lens: Summary judgment

The court stresses that its review is confined to the ground actually raised in the summary judgment motion: whether, under Stevens, plaintiff had failed to show “legally cognizable harm” because she had not been exonerated of her manslaughter conviction.

Under ORCP 47 C and the cases interpreting it:

The court must consider the pleadings and all summary judgment materials in the light most favorable to plaintiff as the nonmoving party.
Defendant attached, among other things, plaintiff’s guilty plea petition, judgment of conviction, and trial court register for the criminal case.
Those materials, plus plaintiff’s complaint and affidavits, form the record.

The question is thus narrow: does the record, viewed favorably to plaintiff, present a genuine issue of material fact about some legally cognizable harm caused by defendant’s alleged negligence? If so, Stevens does not compel judgment for defendant.

B. Re-framing Stevens: The critical limiting phrase

A pivotal move in Moore‑Reed is the court’s close reading of Stevens’s own framing of the issue:

“When is a person who has been convicted of a criminal offense deemed to have been ‘harmed’ by any negligence of defense counsel that the person alleges contributed to the person’s conviction?” (316 Or at 229, emphasis added)

The court emphasizes that both the question and the policy analysis in Stevens are explicitly about alleged negligence that resulted in wrongful conviction.

Thus, the court re-characterizes the “unequivocal” language quoted by the Court of Appeals as being context-specific:

Where the plaintiff alleges that defense counsel’s negligence caused or contributed to a criminal conviction, “harm” for malpractice purposes exists only upon exoneration.
Where the plaintiff alleges harms that are unrelated to the conviction, Stevens does not speak.

The Court of Appeals erred, the Supreme Court says, by assuming plaintiff’s claim was like Stevens—i.e., that she was claiming her attorney’s negligence “contributed to her conviction”— when, viewed in the light most favorable to her, at least some of the harms alleged are entirely independent of the manslaughter conviction.

C. Identifying non-conviction-related harms in the record

The court surveys plaintiff’s allegations and the summary judgment record, looking for harms that do not arise from, and are not derivative of, her manslaughter conviction. It identifies several:

The murder indictment and pretrial incarceration.
- Plaintiff alleges that defendant’s act of sending the cellphone video to the prosecutor led directly to:
  - a new murder indictment,
  - revocation of her bail, and
  - 20 months of pretrial incarceration.
- Those events occurred before her manslaughter plea and conviction and are factually tied to the elevated charge of murder, which was later dismissed.
Economic harms not flowing from the conviction.
- Additional attorney fees due to the murder charge and need for new counsel.
- Lost wages associated with pretrial incarceration following the murder charge.
- These losses are tied to the murder case and pre-conviction detention, not to the validity of the ultimate manslaughter conviction.
Reputational harms from video dissemination.
- Plaintiff alleges that defendant’s delivery of the video to the prosecutor resulted in its “worldwide dissemination” and:
  - public ridicule,
  - ongoing damage to reputation, and
  - national and international notoriety, including a Dateline NBC episode and podcast focused on the video.
- The court characterizes this as harm that is “completely unrelated to her conviction”.
Emotional harms tied to the murder charge and publicity.
- Extreme emotional distress, depression, suicidal ideation, and despondency allegedly stemming from being charged with murder, incarcerated pretrial, and having her trauma displayed publicly.
- The court notes that at least some of these allegations appear to be related specifically to the murder charge and its collateral consequences, not to the manslaughter conviction.

The court concludes that, even if some portion of plaintiff’s alleged harms may be connected to her manslaughter conviction and thus subject to Stevens, “it is undeniable that at least some of plaintiff’s allegations describe harms that are completely unrelated to her conviction.”

D. Addressing defendant’s attempt to fold everything into the conviction

Defendant argued that plaintiff’s own filings suggested her allegations were, at bottom, about her conviction. In particular:

She alleged that defendant’s negligence caused “significant harm to her legal defense.”
In her affidavit, she asserted that but for her 20-month pretrial incarceration (which she attributed to defendant’s negligence in sending the video), she would not have accepted the manslaughter plea.

The court responds in two ways:

Portions of the claim may indeed be conviction-related—and those portions would fall under Stevens.
- To the extent plaintiff claims that counsel’s negligence contributed to her decision to plead guilty or harmed her defense in a way that led to conviction, those aspects of the claim would require exoneration to be viable under Stevens.
- The court explicitly leaves that sorting exercise for the trial court on remand.
But other allegations are plainly independent of the conviction.
- Harms from public dissemination of the video, reputational damage, and emotional distress tied specifically to the murder indictment and publicity remain outside Stevens’s scope, regardless of how other allegations are characterized.

The crucial point: as long as some non-conviction-related harms are plausibly alleged and supported, Stevens cannot be used to extinguish the entire malpractice claim by summary judgment.

E. Testing Stevens’s three policy rationales against this fact pattern

The defendant argued that even if Stevens was factually distinguishable, its policy reasons should still bar plaintiff’s suit. The court evaluates each rationale and finds none applies here.

1. Criminal/post-conviction scheme and ORS 138.530

Recall that Stevens reasoned that where the alleged injury is wrongful conviction based on ineffective assistance, Oregon’s detailed criminal and post-conviction structure already provides the proper mechanism for relief. It would “disregard the legislative policy choice” to allow a civil malpractice shortcut.

Defendant in Moore‑Reed invoked ORS 138.530(1)(a), which allows post-conviction relief for a substantial denial of constitutional rights in the proceedings that “rendered the conviction void,” and ORS 138.540(1), which makes post-conviction the “exclusive means” of challenging a conviction and its underlying proceedings.

The court rejects the argument for several reasons:

Post-conviction relief is tied to convictions, not dismissed charges.
- Plaintiff’s murder charge was dismissed; she was never convicted of murder.
- ORS 138.530(1)(a) focuses on constitutional deprivations that “rendered the conviction void.” That provision does not address alleged malpractice that led to an elevated charge that was then dismissed.
Plaintiff does not contend that her manslaughter conviction is void.
- She does not (in this malpractice case) challenge the validity of the manslaughter conviction at all.
- Nor does she claim that defendant’s negligence rendered that conviction void. Defendant was no longer representing her at the time of the plea and conviction.
Post-conviction remedies cannot redress the harms plaintiff alleges.
- ORS 138.520 limits post-conviction remedies to release, new trial, sentence modification, and “other proper and just relief.”
- The court notes it is “not aware of any relief that a post-conviction court could grant that would vindicate” plaintiff’s claimed harms: past pretrial incarceration on a dismissed charge; reputational damage from the video’s dissemination; emotional trauma associated with publicity.
- This is consistent with Drollinger’s observation that Stevens assumes the criminal-post-conviction system can correct the particular wrong, which is not the case here.

Thus, the first Stevens policy rationale—respecting the legislature’s choice to channel wrongful conviction claims through post-conviction relief—does not apply when the alleged malpractice harm is something other than wrongful conviction.

2. Finality of convictions

The second Stevens concern is preserving the finality of criminal convictions. The court in Stevens held it would be “inappropriate to treat a complaining convicted offender as having been ‘harmed’ in a legally cognizable way by that conviction” while the conviction remained valid (316 Or at 232).

In Moore‑Reed:

Plaintiff does not ask the civil court to declare her manslaughter conviction invalid or wrongful.
Her murder charge—the only charge directly linked to defendant’s alleged negligence—was dismissed; there is no conviction in play there.
Litigating whether defendant’s negligence caused the murder indictment, pretrial incarceration, and dissemination of the video does not require re-litigating the validity of any conviction.

Any concern that plaintiff might attempt to use the malpractice trial to indirectly attack the murder indictment or bail revocation can, the court notes, be addressed through:

pretrial motions, and
appropriate jury instructions.

The court analogizes to Drollinger, which recognized that some malpractice damages (e.g., extra litigation costs) do not depend on, and therefore do not threaten, the settled nature of the underlying conviction.

3. “Better deal” and speculative outcome arguments

The third Stevens concern is preventing speculative “better deal” malpractice actions—claims that a defendant could have received a lesser charge or shorter sentence, even though the conviction itself is valid and unchallenged.

Defendant argued that plaintiff’s theory was functionally a “better situation” claim: that her “situation” (publicity, incarceration length, etc.) would have been better had the murder indictment never been pursued. He equated that to the “better deal” theories rejected in Stevens.

The court rejects that equivalence:

Qualitative difference from “better deal” claims.
- Plaintiff does not claim that her manslaughter conviction is invalid or that she should have received a lesser conviction or sentence.
- Instead, she claims that defendant’s specific act (sending the video without consent) directly caused discrete harms—elevated charges, pretrial incarceration, reputational damage—in addition to and apart from the harms inherent in her manslaughter conviction.
- Those are not speculative “maybe I would have gotten a lighter charge” contentions; they are concrete alleged consequences of a particular negligent act.
Overlap in harms goes to damages, not viability.
- Defendant pointed out that plaintiff received credit for her pretrial detention when sentenced on the manslaughter conviction and that manslaughter charges themselves could also lead to publicity.
- The court acknowledges that such overlap may affect the amount of damages attributable to defendant’s negligence, but it does not eliminate the existence of some independent harm.
- Sorting what portion of plaintiff’s suffering is attributable to the murder charge vs. the manslaughter conviction is a factual damages issue, not a threshold bar to the claim.

Echoing Drollinger, the court concludes that for damages not dependent on the certainty of successfully undoing a conviction, exoneration is unnecessary, and the risk of “indeterminate and potentially unlimited liability” is overstated—especially because such non-conviction-related harms will arise “infrequently.”

F. Rejecting the “no legally protected interest” argument

Defendant also argued that plaintiff had no legally protected interest in not being prosecuted on an elevated charge, and therefore could not establish “harm” within negligence doctrine.

The court disposes of this argument on two levels:

Procedural:
- This argument was not raised as a ground for summary judgment in the trial court; the motion focused solely on the absence of exoneration under Stevens.
- On that basis alone, it is not a proper basis to affirm summary judgment.
Substantive:
- The argument mischaracterizes the nature of plaintiff’s claim.
- She does not challenge the prosecutor’s or grand jury’s decisions as negligent; she does not allege “negligent prosecution” as a new tort.
- Her claim is framed squarely as legal malpractice: that her attorney owed her a duty of reasonable care, breached it by sending the video without consent, and thereby caused her measurable economic and noneconomic harms.
- Her legally protected interest is the right to competent representation and to have her attorney act as a reasonably competent criminal defense lawyer in protecting her interests (per Onita Pacific).

The court stresses that it expresses no view, at this stage, on whether sending the video to the prosecutor actually breached the standard of care. That is a merits question not presented in the summary judgment motion and left for trial.

G. The bottom line: Partial application of Stevens

Putting all of this together, the court draws a clear doctrinal line:

To the extent plaintiff alleges harms that result from her manslaughter conviction (loss of liberty following conviction, conviction-related stigma, etc.), Stevens governs and requires exoneration as a predicate to recovery.
To the extent she alleges harms that are unrelated to, and do not flow from, that conviction—pretrial incarceration from the murder charge, reputational harm from public dissemination of the video, emotional distress associated with those events—Stevens does not apply, and she may pursue those malpractice claims without exoneration.

Because the summary judgment record supports at least some independent harms, summary judgment was improper. The case is remanded for further proceedings, where the trial court must:

separate conviction-based damages (if any) from independent harms, and
allow plaintiff to proceed on the latter, subject to proof of duty, breach, causation, and damages.

VI. Simplifying the Key Legal Concepts

A. What is “legal malpractice” in this context?

“Legal malpractice” here is simply negligence by a lawyer. To win, a plaintiff generally must prove:

The lawyer owed a duty of care (automatically true in an attorney–client relationship).
The lawyer breached that duty by acting (or failing to act) in a way that a reasonably competent lawyer would not.
The client suffered harm measurable in damages (economic or emotional/non-economic).
There is a causal link between the breach and the harm: “but for” the lawyer’s negligence, the harm would not have occurred.

When the lawyer is criminal defense counsel, extra complications arise because:

The criminal justice system already has its own mechanisms to correct wrongful convictions.
(appeals, post-conviction relief).
Courts are cautious about letting malpractice suits undermine the finality of convictions.

B. What is “exoneration” and why did it matter?

“Exoneration” in this context means that the plaintiff has successfully overturned or nullified the criminal conviction through:

reversal on direct appeal,
post-conviction relief (e.g., for ineffective assistance of counsel), or
other mechanisms that vacate the conviction (e.g., executive clemency in some contexts).

Under Stevens, exoneration is required only when the alleged malpractice harm is the wrongful conviction itself (or directly derivative harms like incarceration time caused by that conviction). In that narrow scenario, exoneration is what transforms an otherwise valid conviction into a legally recognized harm attributable to counsel’s negligence.

C. “Legally cognizable harm” vs. mere dissatisfaction

Not every unhappiness with a lawyer’s performance counts as “harm” in the legal sense. A harm is “legally cognizable” when:

it invades a legally protected interest, and
it results in actual, measurable loss or injury.

In Stevens, the court said a person with a still-valid conviction has not (yet) suffered legally cognizable harm from that conviction for malpractice purposes, because the legal system presumes valid convictions to be justified until overturned.

In Moore‑Reed, however, harms like:

20 months of pretrial incarceration resulting from an elevated charge allegedly caused by counsel’s act,
economic loss from that pretrial incarceration and the need to hire new counsel, and
ongoing reputational and emotional injuries from worldwide dissemination of a video allegedly disclosed negligently
are all legally cognizable injuries independent of whether a later manslaughter conviction is valid or not.

D. Summary judgment in plain terms

“Summary judgment” is a mechanism to terminate a case without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court:

takes the nonmoving party’s evidence as true, and
asks whether any reasonable juror could find for that party on the key legal issue.

Here, the only basis for summary judgment was the legal proposition that plaintiff had no cognizable harm without exoneration. Once the Supreme Court held that some of her alleged harms fall outside Stevens, summary judgment could not stand.

E. Post-conviction relief vs. malpractice

“Post-conviction relief” (PCR) is a specialized proceeding in which a convicted person can challenge the validity of the conviction or sentence on limited grounds—primarily constitutional violations, including ineffective assistance of counsel.

PCR is:

exclusive as to challenges to the conviction and the proceedings that led to it (ORS 138.540(1)); but
not exclusive as to all other harms a defendant might suffer in connection with criminal litigation.

In Moore‑Reed, PCR could not:

undo pretrial incarceration on a dismissed murder charge,
erase past worldwide publication of the video, or
compensate plaintiff for reputational harm and emotional distress from that publicity.

Those harms are left to be addressed, if at all, by tort law—here, a malpractice action.

VII. Practical Impact and Future Implications

A. For Oregon legal malpractice doctrine

Moore‑Reed establishes a more precise framework for malpractice claims against criminal defense counsel:

Conviction-based malpractice claims remain governed by Stevens.
- If the plaintiff alleges that counsel’s negligence caused or contributed to the conviction or its direct effects (e.g., incarceration under that conviction):
  - Exoneration (via appeal, PCR, or otherwise) is still required.
  - The claim generally accrues only upon such exoneration.
Non-conviction-based malpractice claims are not subject to the exoneration requirement.
- If the plaintiff alleges harms that:
  - occurred pre-conviction or apart from the conviction, and
  - would not be corrected through appeal or PCR (e.g., pretrial incarceration after an elevated charge; reputational harm from negligent disclosures; additional defense costs)
- then the plaintiff need not first obtain exoneration and may bring the malpractice claim under ordinary negligence principles.

This “two-track” model, foreshadowed by Drollinger and now made explicit for trial-counsel malpractice, gives Oregon courts a clearer analytical tool for parsing mixed-damage malpractice claims.

B. For plaintiffs and their counsel

Litigants now have a refined roadmap when suing criminal defense lawyers:

Pleading strategy.
- Complaints should separate:
  - damages that depend on showing the conviction was wrongful, from
  - damages that would exist even if the conviction is valid.
- The latter can proceed even absent exoneration; the former remain barred by Stevens unless and until exoneration occurs.
Limitations periods.
- Because non-conviction damages are not tied to exoneration, they presumably accrue under the ordinary malpractice accrual and discovery rules (the court does not address this directly, but it follows from removing exoneration as an element).
- Practitioners must track potentially different limitations timelines for conviction-based and non-conviction-based harms.
Evidentiary and causation complexities.
- Plaintiffs will need to prove:
  - that but for counsel’s specific negligence (e.g., disclosing a video), the elevated charge, pretrial detention, and reputational harms would not have occurred; and
  - which portion of their damages are attributable to that negligence versus the underlying criminal conduct and valid conviction.
- This likely will require detailed expert testimony on criminal practice, prosecutorial decision-making, and perhaps media impact.

C. For criminal defense counsel and the Professional Liability Fund

Defense counsel and their insurers (including the Oregon State Bar’s Professional Liability Fund, which appeared as amicus) face a sharpened exposure profile:

Expanded malpractice exposure for pretrial decisions.
- Decisions that affect:
  - whether more serious charges are filed,
  - whether the client is detained pretrial, and
  - how client confidences and evidentiary materials are shared with the prosecution
- may now form the basis of malpractice claims even if no exoneration is ever obtained.
Heightened scrutiny of disclosure of client materials.
- This case spotlights a critical practice issue: when, how, and whether to disclose client-provided materials (like videos) to the prosecution.
- While the Supreme Court does not decide whether sending the video was negligent, it signals that such conduct can have serious malpractice consequences.
- Defense lawyers may respond by:
  - tightening internal policies on evidence handling,
  - seeking express client consent for strategic disclosures, and
  - documenting advice and consent in writing.
Risk management and training.
- Malpractice insurers and bar programs will likely emphasize:
  - the importance of protecting client confidences,
  - careful evaluation of the foreseeable consequences of disclosing inculpatory materials, and
  - the need to explain to clients the possible downstream effects of pretrial strategic decisions.

The court, however, tempers concerns about “indeterminate and potentially unlimited liability” by predicting that cases where harms are clearly independent of conviction will be relatively rare.

D. For trial and appellate courts

Trial courts will now have to navigate a more nuanced landscape in criminal-defense malpractice cases:

Motion practice.
- Courts must carefully distinguish:
  - claims that allege wrongful conviction (subject to Stevens), from
  - claims alleging independent harms (governed by ordinary tort principles).
- Partial summary judgment may be appropriate to remove conviction-based damages where there is no exoneration, while allowing the remainder of the claim to proceed.
Jury instructions and verdict forms.
- Instructions will need to clearly delineate:
  - which harms the jury may consider as potentially caused by malpractice, and
  - which harms (e.g., incarceration under a valid conviction) they must not attribute to lawyer negligence absent exoneration.
- Special verdict forms may be used to segregate damages into conviction-related and independent categories.
Appellate review.
- Appellate courts reviewing similar malpractice cases will need to scrutinize the record to ensure that summary judgment decisions respect the distinction Moore‑Reed draws.

E. Potential influence beyond Oregon

Although the opinion is grounded in Oregon’s specific post-conviction statutes and the Stevens line of cases, it speaks to a general problem present in many jurisdictions: how to balance:

respect for criminal convictions and existing remedies, against
fair compensation for harms caused by defense counsel that are not correctable by criminal court remedies.

Other courts faced with similar exoneration rules may look to Moore‑Reed as a model for carving out exceptions for non-conviction-based harms, especially where the criminal/post-conviction framework is structurally incapable of redressing those harms.

VIII. Open Questions and Issues for Remand

Moore‑Reed deliberately leaves several significant issues unresolved, to be addressed by the trial court on remand or in future cases:

Was sending the cellphone video to the prosecutor negligent?
- The Supreme Court explicitly disclaims any view on the merits of this question.
- On remand, plaintiff must prove that defendant’s conduct deviated from the standard of care for criminal defense attorneys—likely requiring expert testimony on:
  - confidentiality and privilege,
  - strategic considerations in disclosing incriminating evidence, and
  - ethical rules governing client consent to such disclosures.
Which specific harms are conviction-based versus independent?
- Some alleged damages may straddle both categories (e.g., general reputational harm from the fact of criminal prosecution and conviction vs. distinct harm from the sensational video).
- The trial court must parse the complaint and evidence to decide which damages claims:
  - are foreclosed by Stevens absent exoneration, and
  - may proceed under Moore‑Reed.
Causation and the role of independent actors.
- Even if sending the video was negligent, plaintiff must prove:
  - that the prosecutor would not have sought, and the grand jury would not have returned, a murder indictment without the video, and
  - that bail would not have been revoked and other harms would not have occurred but for that indictment.
- These causation questions involve decisions by independent actors (prosecutors, grand jurors, judges), which often complicate the causation analysis in malpractice suits.
Apportionment of damages.
- The fact that plaintiff received credit for pretrial time served at sentencing raises questions about the net incremental harm from pretrial detention.
- Similarly, to what extent reputational and emotional harms are attributable to:
  - the underlying homicide and eventual manslaughter conviction, versus
  - the specific publicity surrounding the video
  will be vigorously contested.
Accrual and limitations for non-conviction harms.
- Although not addressed in this opinion, future cases may need to determine precisely when such claims accrue and whether the discovery rule applies in the same way as traditional malpractice claims.

IX. Conclusion and Key Takeaways

Moore‑Reed v. Griffin stands as a major clarification of Oregon’s exoneration requirement in criminal-defense malpractice actions. It draws a principled line:

Where the alleged malpractice harm is the conviction itself (or direct consequences of that conviction):
Stevens v. Bispham continues to govern. The plaintiff must be exonerated through established criminal or post-conviction processes before a civil malpractice claim based on wrongful conviction can proceed.
Where the alleged malpractice harm is independent of the conviction:
exoneration is not required. Plaintiffs may pursue claims for harms such as:
- pretrial incarceration caused by an elevated charge allegedly triggered by counsel’s negligence,
- economic losses associated with that incarceration and with defending against more serious charges, and
- reputational and emotional harms from negligent disclosure of client materials,
even if they remain validly convicted of some offense.

The decision preserves the core of Stevens—respect for the primacy of the criminal and post-conviction framework in correcting wrongful convictions and maintaining the finality of valid convictions—while recognizing that that framework is not designed to address all forms of harm that may be caused by criminal defense lawyers.

For practitioners, Moore‑Reed emphasizes:

the importance of distinguishing conviction-based from non-conviction-based damages in pleadings and proof,
the continuing vitality of the exoneration requirement in the former category, and
the real malpractice exposure that can arise from pretrial decisions—especially around evidence disclosure and client confidences—that cause independent, irreparable harm.

For the law of legal malpractice, Moore‑Reed marks a careful recalibration: it reaffirms the limits imposed by Stevens, but prevents those limits from swallowing the broader tort principle that clients are entitled to competent representation and may seek damages for harms that the criminal justice system cannot itself remedy.