[223]*223GILLETTE, J.
This is a professional negligence action brought by a former criminal defendant against the lawyer who defended him. The issue presented for our decision is this: At what point does the statute of limitations for legal malpractice begin to run with respect to a lawyer’s defense of a client who has been convicted in a criminal case? We hold that it does not begin to run until the plaintiff has been exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise.
Plaintiff, charged with three counts of Robbery I, three counts of Menacing, and one count of Public Indecency, was convicted and sentenced to imprisonment for eight and one-half years. He began serving his sentence. His convictions were vacated after another person confessed to the crimes. Plaintiff then filed this negligence action for legal malpractice against defendant.1 Defendant moved for summary judgment on the ground that plaintiff had failed to file the action within the two-year statute of limitations. ORS 12.110.2 The trial court granted defendant’s motion, and plaintiff appealed. The Court of Appeals, concluding that there were unresolved questions of material fact, reversed and remanded. Stevens v. Bispham, 108 Or App 588, 816 P2d 700 (1991). We affirm the decision of the Court of Appeals, but on different grounds.
On review of a summary judgment, we determine whether the moving party is entitled to judgment as a matter of law. ORCP 47C; Seeborg v. General Motors Corporation, 284 Or 695, 699, 588 P2d 1100 (1978). In reviewing a trial court’s ruling on a motion for summary judgment, we view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Whitaker v. Bank of Newport, 313 Or 450, 452, 836 P2d 695 (1992).
[224]*224On October 23,1986, three women who had stopped to look at the Sahalie Falls were accosted by a man wearing a dark green ski mask. The man demanded the women’s underwear and waved a knife at them while he exposed himself. As he fled, the man removed his mask, revealing his face to one of the victims. The victims observed a “newer” gray Isuzu pickup truck with a gray canopy in the parking lot.
At the time of the incident, plaintiff was on probation for a conviction for misdemeanor indecent exposure. Plaintiffs probation officer questioned him about the incident. Plaintiff denied committing the crime and consented to a polygraph examination. In the interview conducted by the polygraph operator before administering the test, plaintiff acknowledged that, about the time of the crimes, he had driven through the area where the crimes occurred on his way to Paisley to pick up his wife. Plaintiff insisted, however, that he had not gone to Sahalie Falls.
When plaintiff was advised that the polygraph examination indicated that he had been deceptive about his involvement in the incident, plaintiff became agitated and admitted that, while he was on his way to Paisley, he may have seen two or three women getting into a car. Plaintiff pulled out a pocket knife, held it to his throat, and threatened suicide. Police officers subdued him and held him in temporary confinement due to his mental condition.
Later that day, plaintiffs wife consented to a search of their home and their two vehicles, a 1974 red Maverick and 1972 white Chevrolet pickup truck, which had no canopy. The police seized a dark green stocking cap and a large folding knife from plaintiffs residence. Plaintiffs wife told the police that she believed that her husband had been cutting wood on October 23 and that he had not picked her up in Paisley until November 6.
The victim who had seen the assailant’s face picked plaintiffs picture out of a photographic display. Several days later, a detective showed the victim two more recent photographs of plaintiff, and the victim said that she believed that plaintiff was the man who had accosted her.3 The detective [225]*225contacted plaintiffs employer and confirmed that plaintiff had not worked on October 23, 1986. The victim later positively identified the color, but not the style, of the seized stocking cap. She could not positively identify the knife.
At his arraignment on November 17,1986, plaintiff pleaded not guilty to all charges. The trial court appointed defendant to represent plaintiff. Defendant met with plaintiff three or four times, generally with plaintiffs wife also present. Because plaintiff could not read, defendant read the police reports to him and discussed the evidence with him. Plaintiff consistently denied committing the crimes. Plaintiff told defendant that, on the day of the crime, he was cutting firewood with his two young children. Plaintiff and his wife gave defendant the names of possible witnesses who might confirm that they had observed plaintiff leaving on October 23 to cut wood and returning home with wood.
Defendant obtained approval from the court to hire an investigator and to have plaintiff examined by a psychiatrist to determine if he was competent to aid and assist in his defense. Thereafter, however, defendant neither hired an investigator nor had a psychiatric evaluation performed. Defendant also made no attempt to interview any of the three victims.
On March 29,1987, two days before trial, defendant told plaintiff that the state had a strong case and that he thought that plaintiff would be convicted. Defendant also told plaintiff that the polygraph results probably would be admissible at trial and would be very damaging to his case. Defendant did not tell plaintiff that the prosecutor had agreed that plaintiffs misdemeanor conviction for indecent exposure would not be used against him at trial. Defendant advised plaintiff that the judge likely would give him a lighter sentence if he pleaded no contest than if he were to be convicted after a jury trial. Defendant further told plaintiff that he must decide that day whether he wished to change his plea. In his deposition in this action, plaintiff testified that, although he had thought that he wanted a trial on the criminal charges, he decided to take defendant’s advice. However, plaintiff never told defendant that he wanted a jury trial.
[226]*226On March 31,1986, plaintiff withdrew his plea of not guilty and entered a no-contest plea to the four counts against him. At the plea hearing, the judge asked plaintiff if he was satisfied with the help that his lawyer had given him. Plaintiff responded, “Yes, I am.” In his deposition in this action plaintiff testified that, when he entered his no-contest plea, he was not satisfied with defendant’s representation, because plaintiff knew that he was going to prison. He thought that defendant should have done something “besides just giving me years.” He thought that some investigation would have proven his innocence, but he did not know what kind of investigation. He did not want to plead no contest, but he relied on defendant’s advice.
On July 8, 1987, the trial court entered judgment of conviction and sentenced plaintiff to eight and one-half years in prison. Defendant’s representation of plaintiff ceased on that day. Plaintiff began serving his sentence immediately. On April 22,1988, another man confessed to the crimes. On April 27,1988, the trial court vacated plaintiff s judgment of conviction. On May 21, 1988, plaintiff contacted a lawyer concerning his civil claim against defendant in this case.
On April 24, 1989, plaintiff filed this action against defendant for professional negligence. That date was more than two years after plaintiff had entered his no-contest plea, but within two years of his conviction and incarceration and less than one year after the judgment of conviction was set aside. Plaintiff alleged in his complaint that, if defendant had provided adequate representation, he would have been acquitted or all charges would have been dismissed. Plaintiff further alleged that defendant was negligent in (1) failing to seek suppression of the photographic identification, (2) failing to investigate, (3) failing to request a lineup, (4) failing to keep plaintiff informed, (5) failing to consult with or refer plaintiff to a more experienced lawyer, (6) advising plaintiff to plead no contest, (7) waiving a hearing in mitigation at sentencing, and (8) failing to have plaintiff examined by a psychiatrist. Defendant’s answer denied the allegations of negligence and, as an affirmative defense, pleaded that the statute of limitations had run.
Defendant moved for summary judgment on his affirmative defense. The trial court granted defendant’s [227]*227motion. Plaintiff appealed. The Court of Appeals reversed and remanded, holding that there existed a genuine issue of material fact regarding when plaintiffs claim had accrued and, therefore, that summary judgment was not appropriate. Stevens v. Bispham, supra, 108 Or App at 594.
A claim for professional negligence in the form of legal malpractice must be commenced within two years of the date on which the claim accrues. ORS 12.010; ORS 12.110(1); U.S. Nat’l Bank v. Davies, 274 Or 663, 665-66, 548 P2d 966 (1976). With respect to legal malpractice claims, Oregon follows the “discovery” rule for establishing when a claim accrues. Id. at 666; see Stephens v. Bohlman, 314 Or 344, 349-50, 838 P2d 600 (1992) (discussing discovery rule in context of medical malpractice). The statute of limitations does not begin to run until the client knows or, in the exercise of reasonable care, should know “ ‘every fact which it would be necessary for the [client] to prove * * * in order to support his right to judgment.’ ” U.S. Nat’l Bank v. Davies, supra, 274 Or at 666-67 (quoting Franks, Limitations of Actions 11 (1959)). Thus, the claim accrues and the statute of limitations begins to run when the client both suffers damage and knows or, in the exercise of reasonable care, should know that “ ‘the substantial damage actually suffered was caused by’ ” the lawyer’s acts or omissions. Id. at 670 (emphasis in original).
As often happens in the law, an appeal concerning one issue will turn on the resolution of another, separate issue. From the beginning, this has been an appeal involving whether the statute of limitations for the kinds of professional negligence alleged by plaintiff had run. But, in order to answer that question, it is necessary to determine what are the precise elements of an action for professional negligence (in this case, legal malpractice) for someone in plaintiffs position, so that one can determine when all those elements were discovered.
In the traditional legal malpractice action, as in other tort actions in which there is a special relationship between the plaintiff and the defendant, the plaintiff usually must allege and prove (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation, i.e., a causal link between the breach of duty and the harm. See [228]*228Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 14-15, 734 P2d 1326 (1987) (discussing elements of negligence action in context of special relationship between plaintiff and defendant). Here, there is no issue as to the existence of a duty that defendant owed to plaintiff, the breach of that duty, or causation (all of which are assumed for purposes of this case). Rather, this is a case about harm, i.e., about when plaintiff is deemed by the law to have suffered harm that may be attributed to defendant’s alleged negligence. Determining precisely when plaintiff is deemed by the law to have suffered harm is the pivotal inquiry because, until he is deemed to have been harmed, that requisite element is missing, plaintiff has no claim that he could have brought against defendant and, therefore, the statute of limitations has not yet begun to run. U.S. Nat’l Bank v. Davies, supra, see also Duyck v. Tualatin Valley Irrigation Dist., 304 Or 151, 163-64, 742 P2d 1176 (1987) (statute of limitations begins to run when plaintiff is aware, or should be aware, that he has been harmed and that there is a probable connection between the damages resulting from that harm and defendant’s negligence).
When we speak of “harm,” in the sense in which we will discuss it hereafter, we are referring to something more than the fact that a plaintiff has been convicted when he or she should not have been. Obviously, any such event is “harm,” in the common meaning of that term, when it occurs. Rather, we are speaking of “harm” in the legal sense, i.e., a collection of facts that the law is prepared to recognize as constituting the “harm” element of a claim for professional negligence. See, e.g., Brennen v. City of Eugene, 285 Or 401, 405, 591 P2d 719 (1979) (negligence claim requires “legally cognizable damage to plaintiff’) (emphasis supplied).
Depending on the case, the question of when harm occurs maybe a question of fact or a question of law. Brown v. Babcock, 273 Or 351, 355, 540 P2d 1402 (1975). In some cases, a court could conclude as a matter of law that no triable issue of fact exists as to when a client suffered harm from a lawyer’s negligence. See, e.g., U.S. Nat’l Bank v. Davies, supra, 274 Or at 668 (“[t]here is no doubt that [the client’s] necessity to defend [an action resulting from his lawyer’s bad advice] caused him damage more than two years prior to the [229]*229commencement of the present action”). In other cases, only a trier of fact can determine when the client sustained harm that was caused by a lawyer’s conduct. See, e.g., Brown v. Babcock, supra (jury properly determined, from conflicting evidence, when the client sustained harm from his lawyer’s allegedly negligent defense of a property foreclosure action). For the reasons that follow, we conclude that the nature of plaintiffs claim makes this one of those cases in which it is appropriate for a court to determine that no triable issue of fact exists as to when the plaintiff suffered harm.
Legal malpractice is a common-law tort claim. In the absence of any pertinent legislation, it is for this court to define what constitutes legally cognizable harm in a tort case. The legislature has not addressed directly the question of when a person whose lawyer in a criminal case is guilty of professional negligence has been harmed for the purposes of a professional negligence action; this court therefore must do so. However, the failure of the legislature to address the specific question does not mean that the legislature has not provided general policy guidance bearing on our decision.
We refer to “policy,” because the choice of what constitutes legally cognizable harm is a policy choice. In this case, the specific policy choice to be made is the following: 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? In our view, the answer to that question is informed by the comprehensive legislative scheme that constitutes the substantive and procedural criminal law in Oregon.
Persons accused of criminal offenses in Oregon are afforded a wide range of procedural protections, many of which are derived from requirements of the Oregon and United States Constitutions. For example, one accused of a criminal offense is entitled to be represented by counsel, ORS 135.040, to be informed ofthe charge against the person, ORS 135.020, to be admitted to bail, ORS 135.230 et seq, to have reciprocal discovery of pertinent information, ORS 135.805 et seq, to be tried by a jury, ORS 136.001, and to have each element of the charge proved beyond a reasonable doubt, ORS 136.415. After conviction, the person is entitled to have a [230]*230pre-sentence investigation to determine an appropriate sanction, ORS 137.077, to be represented by counsel throughout the sentencing proceedings, ORS 137.071(4) (by implication), and to be heard personally before any sentence is passed, Or Const, Art I, § 11. Following sentencing, the person is entitled to take an appeal, ORS 138.020 and 138.040, and to be represented by counsel on appeal, ORS 138.480 et seq. Finally, with all other avenues of relief exhausted, the person is entitled to attack collaterally the conviction and sentence under Oregon’s post-conviction relief law, ORS 138.510 et seq, on the ground, inter alia, that the person’s counsel did not provide constitutionally adequate representation at trial or on appeal, ORS 138.530(l)(a).
The foregoing list is by no means exhaustive, but it does demonstrate that the legislature has seen fit to control very fully the criminal justice process from pre-trial proceedings through post-conviction relief proceedings, and to provide for nearly all conceivable contingencies that might arise as a case makes its way through that system. The list also demonstrates the legislature’s intention that only those persons deserving of conviction will be, or will remain, convicted. But the elaboration and completeness of the scheme also appears to establish something else, viz., that it is the public policy of this state to treat any person who has been convicted of any criminal offense as validly convicted unless and until the person’s conviction has been reversed, whether on appeal or through post-conviction relief, or the person otherwise has been exonerated. Any policy choice that this court might make concerning when a person in plaintiffs position should be deemed to have been harmed by legal malpractice on the part of the person’s criminal defense counsel should respect, and not hinder, the valid policy choices already made by the legislature.
Respecting the legislature’s comprehensive criminal justice construct means, at a minimum, that it is inappropriate to permit a person who has been convicted of a criminal offense to assert in the courts a claim for legal malpractice in connection with that conviction unless and until the person has challenged successfully the conviction through the direct appeal or post-conviction processes now provided by Oregon [231]*231law, or the person otherwise has been exonerated of the offense.
There are several reasons for adopting the foregoing rule. The first has to do with the nature of any legal malpractice claim that would be brought in cases like this one. The gravamen of such a claim will be that plaintiffs criminal defense counsel failed in some way to perform counsel’s obligations in accordance with the standards of the legal community. But the nature and extent of counsel’s obligations in this specialized area of the law are matters of constitutional import that have been the subject of many decisions both by this court and by the Supreme Court of the United States. Cases illustrating the principles involved are Strickland v. Washington, 466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (counsel must provide “reasonably effective assistance * * * under prevailing professional norms * * * considering all the circumstances”), and Krummacher v. Gierloff, 290 Or 867, 872, 627 P2d 458 (1981) (counsel must give “adequate performance* * * of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf’). Moreover, those constitutional standards specifically are supposed to be vindicated by proceedings under Oregon’s post-conviction relief law. See Krummacher v. Gierloff, supra, 290 Or at 869 (illustrating process). In view of the extensive statutory provisions already in place for the protection of convicted offenders, we think that it would be inappropriate to treat victims of alleged negligence by defense counsel as having been “harmed,” for the purpose of maintaining a legal malpractice action in cases like this, unless they show that their counsel failed to meet the established standards in a way that would make post-conviction relief appropriate.
A second consideration has to do with the nature of a criminal conviction. In our society, no other legal outcome of the trial process is so difficult to obtain. Yet, to allow a person convicted of a criminal offense to sue that person’s lawyer without having first overturned the conviction would mean that the courts would be permitting relitigation of a matter that is supposed to be settled: The complaining party is deemed by the law to be guilty. The panoply of protections accorded to the criminally accused (including direct appeal [232]*232and post-conviction relief) is so inclusive, and the significance of a conviction so important to vindication of the rule of law, that it would appear most unusual to permit a person to prosecute a legal malpractice action premised on some flaw in the process that led to that person’s conviction at the same time that the person’s conviction remained valid for all other purposes. In other words, while the conviction and sentence remain valid for all other purposes, it is inappropriate to treat a complaining convicted offender as having been ‘ ‘harmed’ ’ in a legally cognizable way by that conviction.
At least one other consideration is pertinent. However a person comes to be convicted — whether by a plea to the charge, through a plea agreement, or after a trial to judge or jury — for the purposes of a case like this one, the person convicted is deemed equally guilty. Many prisoner complaints in this area will relate to the failure of counsel to get a ‘ ‘better deal” for the accused. But many “better deals” will relate to terms of a sentence or of probation. Such complaints would not result in a reversal of a conviction, either outright or for a new trial. It is only in these latter circumstances, however, that a legal malpractice action will be available. Although a plaintiff may wish that he or she had gotten a better deal, we do not consider it appropriate, outside of circumstances where the kind of relief that we have described is available under the post-conviction relief law, to treat a convicted offender as having been caused “harm’ ’ in a legally cognizable way by any disposition of that person’s case that was legally permissible.
There is considerable case law that supports the result that we announce here, although it is by no means uniform in its analysis or rationale. There also is a body of case law to the contrary. We mention a few cases of both species in passing.
The leading cases that require successful post-conviction relief proceedings, or some other allegation of innocence of the underlying charge, come from Alaska, New York, and Massachusetts. We discuss them in that order.
In Shaw v. State, Dept. of Admin., PDA, 816 P2d 1358 (Alaska 1991), the plaintiff and a codefendant on a theft [233]*233charge had been represented by a single lawyer. The codefen-dant insisted that the plaintiff was innocent and was willing to testify to that effect. Counsel, in order to protect the interests of the codefendant, refused to let the codefendant testify. The plaintiff was convicted. Several years later, the plaintiff finally received post-conviction relief and a reversal of his conviction on the theft charge due to the constitutional inadequacy of his counsel’s representation. He then brought a malpractice action against his former counsel. As was true in the present case, the plaintiffs former counsel interposed the statute of limitations. A trial judge agreed and dismissed the case. On appeal, the Supreme Court of Alaska reversed. The court stated:
“We hold that a convicted criminal defendant must obtain post-conviction relief before pursuing an action for legal malpractice against his or her attorney. Given that obtaining such relief will remain uncertain until actually granted, the statute of limitations for filing legal malpractice claims must be tolled until such relief is granted.
“Our review of the case law reveals that other jurisdictions are divided on the issue of requiring post-conviction relief for maintaining a legal malpractice action in a criminal case. However, we agree with those courts which have held that public policy requires some form of post-conviction relief as a prerequisite to the filing of a legal malpractice claim.”
Id. at 1360 (footnote omitted). Among the justifications for this approach, the court listed judicial economy (because many of the issues litigated in the malpractice action will be the same as those involved in a post-conviction proceeding, and they will be relevant both to causation and damages); the possible availability of issue or claim preclusion to bar further litigation, if the post-conviction proceeding is unsuccessful; and the fact that requiring a successful post-conviction proceeding creates a “bright line” for determining when the pertinent statute of limitations begins to run. Id. at 1361. The court also expressed concern about “ ‘the litigious nature of incarcerated persons who occupy the time of their incarceration by pursuing civil actions against their former attorneys.’ ” Id. (quoting 2 Mallen and Smith, Legal Malpractice 290, § 21.3 (3d ed 1989)).
[234]*234Although the rule that it announced benefited the plaintiff in the case before it, the Alaska court acknowledged that, as a general matter, requiring a successful post-conviction proceeding before the legal malpractice action could be brought might appear to impose a higher burden on the allegedly wronged criminal defendant than the burden faced by a similarly wronged civil litigant. We agree with the court’s answer to that concern:
“ ‘[TJhere is minimal unfairness in such a requirement since the ability to have a judgment set aside because of the incompetence of counsel is a remedy uniquely available to criminally convicted persons. The civil litigant has no such remedy.’ ”
Id. at 1361-62 (quoting 2 Mallen and Smith, supra, at 291).
In Carmel v. Lunney, 70 NY2d 169, 518 NYS2d 605, 511 NE2d 1126 (1987), the plaintiff had pleaded guilty to a misdemeanor securities law violation. In an ensuing malpractice action, the plaintiff alleged that his counsel had failed to advise him of potential conflicts of interest and of the potentially incriminating effect of the plaintiffs testimony at an administrative hearing. At the time that he brought the malpractice action, the plaintiff had not successfully challenged his underlying conviction; that, the New York Court of Appeals held, was fatal to his claim. The court stated:
“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense [citation omitted], for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. Here, because plaintiff s conviction * * * has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action * * *.
“* * * [B]ecause he cannot assert his innocence, public policy prevents maintenance of a malpractice action against his attorney. This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules (see, e.g., Kaus and [235]*235Mallen, The Misguiding Hand of Counsel — Reflections on ‘Criminal Malpractice’, 21 UCLA L Rev 1191 [1974]).”
70 NY2d at 173-74. We agree particularly with the New York court’s emphasis on the unique nature of a criminal conviction as a source of alleged harm justifying a legal malpractice action.
In Glenn v. Aiken, 409 Mass 699, 569 NE2d 783 (1991), the Supreme Judicial Court of Massachusetts went so far as to require that a former criminal defendant prove, not simply his successful overturning of an underlying conviction, but his actual innocence of the underlying charge as an element of a legal malpractice claim against his former defense counsel. In that case, the plaintiff had been convicted of arson, but his conviction was overturned on appeal due to an incorrect jury instruction. The plaintiffs trial counsel (the defendant in the malpractice action) had not objected to the improper instruction. The commonwealth chose not to retry the plaintiff. The court placed special emphasis on the differences in burdens of proof between civil and criminal cases, as well as on “public policy considerations” suggesting that it was undesirable for criminal defense counsel to be placed in a position that virtually required them to reveal the secrets of their former clients in defending against a legal malpractice claim. 409 Mass at 706-07.
Cases from other jurisdictions have reached similar results. See, e.g., Hines v. Davidson, 489 So 2d 572 (Ala 1986) (requiring that the plaintiff allege that, but for his lawyer’s negligence, he would have been acquitted of underlying charge); Schlumm v. O’Hagan, 173 Mich App 345, 355-56, 433 NW2d 839 (1988) (defense counsel may rely on issue preclusion based oh prior judicial rejection of claim of ineffective assistance of counsel), appeal denied 433 Mich 855 (1989); Johnson v. Raban, 702 SW2d 134, 137-38 (Mo App 1985) (prior judicial determination that defense counsel was not ineffective precluded later malpractice action, because standard for measuring counsel’s performance was same in both cases); Alberici v. Tinari, 374 Pa Super 20, 542 A2d 127, 131-32 (1988) (same); McCord v. Bailey, 636 F2d 606 (DC Cir 1980) (summary judgment for defendant defense counsel upheld where the plaintiffs conviction on the underlying criminal charge had not been reversed on appeal or in post-[236]*236conviction proceedings), cert den 451 US 983 (1981); Weiner v. Mitchell, Silberberg & Knupp, 114 Cal App 3d 39, 48, 170 Cal Rptr 533 (1980) (the plaintiffs damages were caused by his guilt of the underlying offense, not by negligence of counsel).
The foregoing cases do not (as we noted earlier) employ similar reasoning for reaching their similar results. Although we believe that the reasons that we have advanced in our own opinion in this case are bolstered by those cases cited from other jurisdictions, we consider our own list of reasons to be better focused on the underlying theoretical considerations involved.
The strongest case that we have been able to find in opposition to the position that we adopt today is Jepson v. Stubbs, 555 SW2d 307 (Mo 1977). In that case, the plaintiff brought a malpractice action against a lawyer who had represented him on a charge of refusing to submit to induction into the military service. A federal court later set aside the plaintiffs conviction on the underlying charge. The plaintiffs former counsel asserted Missouri’s statute of limitations as a defense. The Supreme Court of Missouri held that the statute had been tolled only so long as the plaintiff was subject to “civil death” under Missouri law. The effect of that ruling was to bar the plaintiffs action. The plaintiff argued, inter alia, that the pertinent date should be the date on which his underlying conviction was set aside. The court specifically rejected that argument, explaining:
“We conclude that it was not a condition to maintaining that suit that the judgment of conviction be set aside. A hypothetical example will illustrate. Suppose that plaintiff in this suit had been sued for damages for negligent conduct in operating his car and defendant attorney advised him that he had no defense and should confess judgment. Suppose further that plaintiff followed his attorney’s advice and confessed judgment and then paid it. Assume finally that it developed subsequently that the attorney had not investigated the facts or the law and was clearly wrong in his advice. The confession of liability and the resulting judgment would at least imply a finding that defendant knowingly recognized and admitted his negligence and his liability. However, contrary to plaintiffs theory regarding collateral estoppel, it would not be a [237]*237condition to a suit against the attorney that plaintiff somehow have set aside the prior judgment finding him negligent and liable in damages. Plaintiff could sue [the attorney] based on his negligent conduct and would not be collaterally estopped from bringing the suit by the judgment that he was negligent and liable to the one who sued him. If plaintiff in this hypothetical situation could prove to the jury that the attorney negligently represented and advised him and that he relied thereon and confessed judgment based on the attorney’s advice, he would have proved that which would be necessary for him to recover.”
Id. at 313-14.
The Missouri court’s decision gives no hint that it considered whether questions such as the nature of the harm suffered by a convicted criminal defendant or the comprehensive nature of the criminal justice process justified thinking about a different analysis. Neither does the Missouri court’s opinion recognize that, unlike the situation in the civil case that it posited, a convicted defendant in a criminal case has specific statutory avenues for setting aside a judgment if defense counsel fails to perform in a constitutionally adequate manner. Because of those deficiencies in its analysis of the framework in which cases like this arise, we do not find Jepson persuasive.
A more interesting case is Krahn v. Kinney, 43 Ohio St 3d 103, 538 NE2d 1058 (1989). In that case, the plaintiff had been charged with three illegal gambling misdemeanors. The lawyer who represented her had a conflict of interest such that, when the prosecutor told the defense counsel that the plaintiff could have the charges against her dismissed in return for testimony against another party, the lawyer (who secretly represented the other party) did not pass the offer on to the plaintiff. The plaintiff then was persuaded by defense counsel to plead to one of the charges in exchange for dismissal of two others. On learning the true state of facts, the plaintiff brought a malpractice action without first managing to have her underlying conviction set aside.4
[238]*238Like the Supreme Court of Missouri, the Supreme Court of Ohio in Krahn analogized to civil actions in holding that it was not necessary that the plaintiff plead that she was innocent of the underlying charge. It was enough to establish a claim, the court held, that plaintiff had “ ‘lost [an] opportunity to minimize her criminal record.’ ” 43 Ohio St 3d at 106 (quoting from the opinion in the same case in the Ohio Court of Appeals).
The opinion in Krahn provokes several comments. The first is that, as was true in Jepson, the Ohio court did not consider the meaning of the availability of a post-judgment form of relief. The second is that, to the extent that the opinion can be understood as recognizing the “although I maybe guilty, I could have gotten abetter deal” school of legal malpractice in the criminal law area, we simply disagree that such civil legal actions should be possible. And, finally, we note that the kind of defalcation alleged to have been committed by the plaintiffs counsel in Krahn would certainly have permitted Krahn to have her conviction set aside, had the same events occurred in Oregon. Thus, on its own facts, and assuming a properly functioning judicial process, a person in Krahn’s position would have been able, after her conviction was set aside, to bring a malpractice action under the rule that we announce in this case.
As was true with respect to the Jepson opinion, we believe that the Ohio court’s opinion in Krahn focused on the wrong questions and missed what are, in our view, the more pertinent ones.
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. We turn now to application of the foregoing standard to the facts of this case.
Defendant argues that plaintiffs claim accrued and the statute of limitations began to run on March 31, 1987, when plaintiff entered his no-contest plea. At that time, defendant argues, plaintiff was both harmed and dissatisfied [239]*239with defendant’s representation. Our previous discussion of the elements of a professional negligence action brought in circumstances like these demonstrates defendant’s error. Plaintiff could not have brought this action until he had suffered legally cognizable harm. See U.S. Nat’l Bank v. Davies, supra, 274 Or at 668 (claim may not be brought before the “maturation of harm”). Plaintiff had not suffered such harm at defendant’s hands in this case unless and until he was exonerated of the criminal offense through reversal on direct appeal, through post-conviction relief proceedings, or otherwise. Here, he legally was exonerated by a means that qualifies as “otherwise.” But the date of that exoneration — the date on which his conviction was set aside and he was released — was well within two years of the date on which the present action was filed. The trial court’s ruling that the harm had occurred more than two years before the complaint was filed therefore was error.
The foregoing demonstrates that the Court of Appeals’ disposition of this case also was incorrect. There is no disputed question of material fact remaining with respect to when plaintiff could first have filed the present action. The action is timely; it must be defended on the merits.
The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is reversed in part. The case is remanded to the circuit court for further proceedings.