Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Smith v. Sneed, 638 So.2d 1252 (Miss. 1994)

MS: Underlying Murder Charge

Student Contributor: Laura Stein

Facts: Smith sued his appointed lawyer, Sneed, alleging he committed malpractice during his representation on a charge of murder. Smith pled guilty to manslaughter and was sentence to 20 years in prison. 3 years later, through a new lawyer, Smith obtained a copy of the autopsy of his alleged victim that showed the victim died of natural causes so Smith’s conviction was set aside and a new trial was ordered and Smith signed a release and was released from prison. Smith alleges his lawyer was negligent in failing to obtain a copy of this autopsy report before advising him to enter a guilty plea to the lesser charge of manslaughter. Sneed moved for summary judgment saying the 6-year statute of limitations had run and also that the release Smith signed released Sneed and others from any and all claims arising out of the case. The trial judge granted summary judgment to Sneed. Smith appealed.

Issue: Whether the Circuit Judge erred in ruling that the statute of limitations ran from the time Smith entered his guilty plea and whether the Release signed by Smith was freely and voluntarily executed was a question of fact, not law and so it was error to grant summary judgment on the issue.

Ruling: Reversed and Remanded for further proceedings as if the motion for summary judgment had been denied. The statute of limitations does begin to run on the date the client learns or should learn of the negligence of his lawyer and this raises factual questions here and questions of material fact existed with regard to the voluntariness of the waiver executed by Smith. Sneed argued at the latest, the statute of limitations period began to run when he was told about the missing autopsy report by a constable at the prison; Smith argued it did not begin to run until he was released from prison because the full extent of his damages was not ascertainable until that date, or at the earliest, when he received a copy of the autopsy report. The court agreed with the trial judge in rejecting the “continuing injury” principle which applies only in situations where the defendant commits repeated acts of wrongful conduct, not where harm reverberates from a single, one-time act or omission. Alternatively, Smith urged the Court to adopt a “discovery” standard for matters of legal malpractice. The Court held that whether the Constable conveyed the contents of the autopsy report in a sufficient manner to put Smith on notice that Sneed was negligent was a factual question for jury determination, not summary judgment. The court also held that regarding the release signed by Smith, he presented facts which could lead a reasonable juror to conclude that the release was not entered into voluntarily and with a full understanding of his legal rights (he denied ever reading it and only signed it to be released from jail). It was inappropriate to grant summary judgment.

Lesson: A client who signs a release stating that he will not file a lawsuit against state defense lawyers must do so knowingly, intelligently and voluntarily. Some states impose a  discovery window to permit a client to discover the lawyer's malpractice note. 

Note: The release of a lawyer by a client for the lawyer's malpractice is prohibited by the Rules of Professional Conduct in most states. 

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Composition Roofers,etc. v. Katz 398 Pa. Super. 564; 581 A.2d 607 (1990)

PA Underlying Criminal Action

Student Contributor: Natalie Resto

Facts: The Union retained the attorney to advise it on all legal matters. Thirteen of the Union’s former members were indicted for its alleged criminal attempts to benefit the Union and its members. The attorney advised the Union that they could lawfully pay the legal expenses of the 13 members who were under indictment. The 13 members were later convicted of 152 criminal counts, including racketeering and mail fraud. The attorney then advised the Union that it was lawful for it to pay for the appeals of the now convicted former members. The Union later sued the attorney for malpractice claiming that the attorney was negligent in advising it that could lawfully pay the attorneys’ fees to defend its officers who were charged with criminal activity.

Issue: Is an attorney negligent if his informed judgment is later found erroneous?

Ruling: The court held that because at the time the attorney advised the Union there was no clear statement of the law on which he could base his recommendation, his advice that the Union could lawfully pay the attorneys’ fees to defend its officers charged with criminal activity was not negligent.

Lesson: An attorney is negligent in a malpractice case if he fails to use ordinary skill, knowledge and care which would normally be possessed and exercised under the circumstances by members of the legal profession. McPeake v. William T. Cannon, Esquire P.C., 381 Pa. Super. 227, 553 A.2d 439 (1989). [However,] [a]n informed judgment on the part of counsel, even if subsequently proven erroneous, is not negligence. Mazer v. Security Insurance Group, 368 F.Supp. 418 (E.D.Pa. 1973), affirmed 507 F.2d 1338 (3rd Cir. 1975). 

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Lawson v. Nugent, 702 F. Supp. 91 (D.N.J. 1988)

NJ: Underlying criminal conviction matter

Student Contributor: Laura Binski

Facts: The client was indicted for robbery of a Post Office and hired the lawyer to represent him. The client claims that the lawyer encouraged him to plead guilty to all three counts of the indictment without investigating whether a factual basis existed for the guilty plea. The client was then sentenced to twenty-five years in a maximum-security penitentiary. While in prison, the client hired a new lawyer who successfully made motions to vacate the guilty plea to two aggravated counts of indictment. The client was released after serving five years of his sentence. The client then sued his original lawyer, claiming that but for the lawyer’s negligent representation, the client would have served a maximum of forty months in a correctional facility. The client seeks damages for the emotional distress he suffered during the “extra” twenty months of confinement.

Issue: May a client recover damages for emotional distress when his relationship to the lawyer was based on a liberty, rather than economic interest?

Ruling: Yes.

“A lawyer who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty.”

Wagenman v. Adams, 829 F.2d 196, 222 (1st Cir. 1987). The Court reasons that deprivation of his freedom could potentially cause an individual to suffer mental distress. Therefore, the client can go forward with his claim of emotional distress due to the extra twenty months he spent in a maximum-security penitentiary allegedly due to negligent representation.

Lesson: The Court makes a point to distinguish between a loss of liberty and loss of economic interest. Typically, legal malpractice actions revolve around a loss of economic interest. Courts generally do not allow emotional distress claims when it is just loss of economic interest at stake in a legal malpractice case. Guatam v. DeLuca, 215 N.J. Super. 388, 521 A.2d 1343 (App. Div. 1987).

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Rodgers v. Weatherspoon, 141 SW 3d 342 (Tex. App. 2004)

TX: Underlying criminal defense

Student Contributor: Megan Diodato

Facts:  The client was charged with aggravated assault and the attorney was appointed to represent him. The client filed motions to act on his own behalf and to dismiss attorney as his counsel. The attorney filed a motion to withdraw. The motion was granted that day. The client personally contacted the court multiple times and on one of his visits the client was arrested because the judge determined his bail was not sufficient. The client claims the clerk told him that if his attorney had been present in court he would have been released to his attorney and would not have to go to jail. The client filed a suit, claiming the attorney committed legal malpractice because he did not communicate with him and did not appear in court in time to allow client to avoid arrest. The client claims damages resulting from spending six days in jail and having to pay additional money for the increased bond. The attorney contends that he had no duty to the client and was not the cause of his arrest and damages. The client appeals attorney’s summary judgment that dismissed his legal malpractice claim.

Issue: Whether attorney’s breach of duty was the proximate cause of the client’s injuries.

Ruling: No.   Attorneys have a fiduciary relationship with their clients as a matter of law and summary judgment may be proper if it is shown that the attorney’s act or omission was not the cause of any damages to the client. The two components of proximate cause are cause-in-fact and foreseeability. Cause-in fact is where the defendant’s acts or omissions were a substantial factor in bringing about the injury that would not otherwise have occurred. Foreseeability does not require that the actor anticipate the particular injury that eventually occurs. In a legal malpractice case, where a lay person would ordinarily be competent to make a determination on causation, expert testimony is unnecessary. The attorney offered evidence through the trial judge’s testimony that the attorney had nothing to do with the client’s bond being held insufficient, as it was insufficient on his own. After the attorney presented this evidence, the client then had the burden of introducing his own evidence to raise an issue of material fact about causation. The client failed to meet this burden and offered no evidence that the attorney ever received word that he needed to appear at the court before the client was taken to jail. Only the county clerk said she had called the attorney’s office and left a message, but had not spoken to the attorney. There is no evidence that the client’s claimed harm would have been diminished or would not have occurred if the attorney had acted the way client contends. The attorney disproved the causation element of client’s malpractice claim as a matter of law.

Lesson: In order to win on a malpractice claim the plaintiff must prove that their harm would have been less or would not have occurred at all  if defendant acted in accordance with the standards of care. 

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Rodgers v. Weatherspoon, 141 SW 3d 342 (Tex. App. 2004)

TX: Underlying criminal defense

Student Contributor: Megan Diodato

Facts:  The client was charged with aggravated assault and the attorney was appointed to represent him. The client filed motions to act on his own behalf and to dismiss attorney as his counsel. The attorney filed a motion to withdraw. The motion was granted that day. The client personally contacted the court multiple times and on one of his visits the client was arrested because the judge determined his bail was not sufficient. The client claims the clerk told him that if his attorney had been present in court he would have been released to his attorney and would not have to go to jail. The client filed a suit, claiming the attorney committed legal malpractice because he did not communicate with him and did not appear in court in time to allow client to avoid arrest. The client claims damages resulting from spending six days in jail and having to pay additional money for the increased bond. The attorney contends that he had no duty to the client and was not the cause of his arrest and damages. The client appeals attorney’s summary judgment that dismissed his legal malpractice claim.

Issue: Whether attorney’s breach of duty was the proximate cause of the client’s injuries.

Ruling: No.   Attorneys have a fiduciary relationship with their clients as a matter of law and summary judgment may be proper if it is shown that the attorney’s act or omission was not the cause of any damages to the client. The two components of proximate cause are cause-in-fact and foreseeability. Cause-in fact is where the defendant’s acts or omissions were a substantial factor in bringing about the injury that would not otherwise have occurred. Foreseeability does not require that the actor anticipate the particular injury that eventually occurs. In a legal malpractice case, where a lay person would ordinarily be competent to make a determination on causation, expert testimony is unnecessary. The attorney offered evidence through the trial judge’s testimony that the attorney had nothing to do with the client’s bond being held insufficient, as it was insufficient on his own. After the attorney presented this evidence, the client then had the burden of introducing his own evidence to raise an issue of material fact about causation. The client failed to meet this burden and offered no evidence that the attorney ever received word that he needed to appear at the court before the client was taken to jail. Only the county clerk said she had called the attorney’s office and left a message, but had not spoken to the attorney. There is no evidence that the client’s claimed harm would have been diminished or would not have occurred if the attorney had acted the way client contends. The attorney disproved the causation element of client’s malpractice claim as a matter of law.

Lesson: In order to win on a malpractice claim the plaintiff must prove that their harm would have been less or would not have occurred at all  if defendant acted in accordance with the standards of care. 

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Pierce v. Colwell, 563 N.W.2d 166 (Wis. Ct. Apps. 1997)

WI: Underlying criminal matter

Student Contributor: Jeff Cain

Facts: Client was charged with ten counts of sexual assault. He was represented by another lawyer during the arraignment and the jury trial, which found him guilty. Lawyer Colwell represented him during the sentencing, in which he was sentenced to 20 years in prison. The client unsuccessfully appealed his conviction, arguing among other things, that his due process rights were violated because the criminal court did not personally read the information to him at the arraignment. The client then sued the lawyer for not raising this fact at the sentencing.

Issue: How can a client prove that his former lawyer committed malpractice?

Ruling: To show lawyer malpractice in a criminal action, you must show that you would have succeeded in court if it were not for the lawyer’s failure to exercise reasonable care. In this case, the client had to show that he would have won if the lawyer argued that the client was prejudiced by the failure of the court to personally read the information to the client. To show this, the client would have to provide expert testimony to prove this. Since the client did not name an expert within the time limits, the court dismissed his claim.

Lesson: In Wisconsin, to prove a breach of a duty of care, expert testimony is generally required, since duty of care is outside of the area of common knowledge.

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Hanna v. State, 714 N.E.2d 1162 (Ind. Ct. App. 1999)

IN: Underlying criminal case

Student Contributor: Jeff Cain

Facts: Six police officers were indicted in a criminal case. One officer was indicted for pointing a firearm, operating a motor vehicle while intoxicated causing bodily injury, and criminal recklessness, among other crimes. The other five officers were indicted for obstruction of justice and/or official misconduct. All officers hired the same lawyer to represent them.

Lawyers must provide their clients with zealous representation. But when a lawyer represents multiple clients in the same matter, there may be potential conflicts of interest. The lawyer informed each officer of the potential conflicts that joint counsel may create. Then a magistrate informed each officer how a conflict may arise and how that conflict will affect their case. Then another lawyer met with each officer to make sure that each officer’s waiver was knowing and intelligent.

The prosecution argued that joint counsel would impair the ability of the prosecution to make a deal with one of the officers in exchange of a deal for a reduced or dropped charge, and that the lawyer wouldn’t be able to cross-examine any of the officers if they became a witness against the other officers. The court ordered each officer to hire their own attorney, despite the waiver.

Issue: Can a trial court disqualify a lawyer on the ground that joint counsel may create a conflict of interest?

Ruling: The right to counsel of choice is protected by the Sixth Amendment to the Constitution of the United States. A trial court cannot disqualify a lawyer when there is no actual conflict of interest.

Lesson: The late Supreme Court Justice Felix Frankfurter said

“Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.” 

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Augman v. Colwart, 874 So. 2d 191 (La. App. 2004)

LA: Underlying Criminal Case

Student Contributor: Laura Stein

Facts: Plaintiff was charged with possession of a firearm by a convicted felon and the court assigned him counsel. He was convicted and that conviction was eventually affirmed on appeal but his sentence was amended. His instant petition alleged his lawyer committed malpractice by failing to seek enforcement of a supposed plea bargain that would have let him plea to a misdemeanor, misrepresenting the terms of the plea bargain, not properly supervising client, not issuing certain trial subpoenas and conflict of interest. Lawyer filed exception of Prematurity in response which the trial court sustained and the client appealed.

Issue: Is a civil petition alleging legal malpractice in representing a criminal defendant premature pending the final disposition of the criminal proceeding?

Ruling: Any appreciable and actual harm flowing from the attorney's negligent conduct establishes a cause of action upon which the client may sue. Here, his harm (conviction, sentencing and jail time) occurred prior to the filing of this action. Therefore, his petition would not appear to be premature. The trial court erred in sustaining the exception. The court of appeal held that “until the judgment giving rise to the malpractice claim becomes definitive, a legal malpractice claim does not ripen into a cause of action.” The holding cannot be that a suit for legal malpractice would always be premature pending a final and definitive judgment on the relevant issue in an underlying action, even if the preemptive period accrues prior to that time which would extinguish a cause of action- that would be unreasonable and unjust. The case was reversed and remanded but the court noted it was a narrow issue.

Lesson: A plaintiff may bring a legal malpractice action while the underlying criminal case is still pending.

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Aaron v. Mansell, 854 So.2d.96 (2003).

AL: Underlying criminal case

Student Contributor: Farah Shahidpour

Facts:  Client hired Attorney. Client, now acting pro se, sues Attorney for legal malpractice and slander. Attorney filed an answer and denied both of Client’s allegations. Attorney cross-filed for summary judgment. Client filed a request for oral argument for evidentiary hearing, a motion for declaratory judgment or in the alternative a trial by jury. Court denies  client's cross-motion for summary judgment.  Client did not file an appeal; instead he filed a “motion/request to file out-of-time appeal.” He asserted that the clerk’s office did not mail his copy of the entry of judgment. The court entered summary judgment in favor of Attorney. Client now appeals.

Issue: Whether the trial court correctly entered summary judgment against Client?

Ruling: Yes. The court dismissed Client’s appeal because Client did not provide an affidavit or other notarized statement that shows the date he sent his notice of appeal in the mail. The certificate of service for the notice of appeal is not dated. It is referenced to “this day.” Therefore the court cannot determine which date he deposited his notice of appeal.

Lesson: If a prison inmate is confined in an institution and is acting pro se and files either a civil or criminal appeal, the notice will be considered as filed timely if it is placed in the institution’s internal mail system on or before the, last day for filing. If an institution processes its legal mail through USPS, then the inmate must use that system to receive the rule’s benefit. A notarized statement setting forth the date of filing can prove a timely filing. Rule 4(c), Ala. R. App. P. 

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Veneri v. Pappano, 424 Pa. Super. 394, 622 A.2d 977 (1993).

PA: Underlying felony conviction case

Student Contributor: Laura Binski

Facts: The client was convicted of two related robberies and sentenced to twenty-five to fifty years in prison. The lawyer was a public defender assigned to the client’s case. The client claims he informed the lawyer that wanted to file a petition for allowance of appeal to the Supreme Court of Pennsylvania. The lawyer did not file the petition, so the client filed it by himself. The client then filed a complaint against the lawyer for negligence in failing to file the petition. The trial court dismissed the complaint and the client appeals.

Issue: Does the client’s complaint state a cause of action in negligence against the lawyer?

Ruling: No. The three elements for a cause of action for negligence are (1) employment of the lawyer, (2) failure of lawyer to act with ordinary skill and knowledge, and (3) that the lawyer’s negligence was a proximate cause of harm to the client. A client must also show that he likely would have won the underlying dispute. Here, the client did not suffer any real harm. The only harm he might have suffered as a result of the lawyer’s failure to file the petition was his right to habeas corpus relief. Since the client did file the petition, he suffered no real damage as a result of the lawyer’s conduct. As a result, his claim against the lawyer is speculative and does not meet the requirements of an action for negligence. In addition, the client did not make any showing that his claims were likely to be successful. Thus, the client’s case was properly dismissed.

Lesson: Speculative claims of future harm are not enough to rise to a viable cause of action. A client will not succeed in legal malpractice claims when he only asserts a possibility that he might be harmed as a result of the lawyer’s conduct. Also, a client must not forget to assert the likelihood that he would have prevailed in his underlying dispute if not for the lawyer’s malpractice.

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Kornicki v. Cherniack, 2006 WL 6049500 (2006).

PA: Underlying criminal defense 

Student Contributor: Laura Binski

Facts: In May of 2000, Kornicki (the client) was found to have violated his probation and sentenced to 7 to 14 years in prison. In 2003, Cherniack (the lawyer) was appointed to represent the client. On behalf of the client, the lawyer filed a Post Conviction Relief Act (PCRA) petition. The court denied the petition. The client sued the lawyer for legal malpractice, claiming that the lawyer was negligent because she failed to raise the issue of credit for time served in the client’s PCRA petition. The trial court sided with the lawyer and dismissed the client’s legal malpractice claim. The client now appeals the court’s decision.

Issue: Was the trial court correct to favor the lawyer’s argument that she did not commit malpractice because she was not allowed to bring up credit for time served in the PCRA petition?

Ruling: Yes. The trial court ruled correctly in favor of the lawyer because under Pennsylvania law, lawyers are not permitted to challenge credit for time served in a PCRA petition because it is not the proper forum to do so. Instead, this type of claim must be raised in the Commonwealth Court against the Bureau of Corrections or in a writ of habeas corpus. Thus, the lawyer was not negligent and acted properly by not bringing up this issue in the wrong forum.

Lesson: In order to establish a legal malpractice claim in a criminal case, a client must show (1) employment of the lawyer, (2) the lawyer’s negligent disregard of the client’s interests, (3) that if not for the lawyer’s conduct, the client would have received an acquittal or dismissal, (4) existence of damages, and (5) that the client has sought post-trial remedies for the lawyer’s mistakes. Since the lawyer in this case could not have appropriately raised the miscalculation of credit issue due to the improper forum, the client failed to meet all of the above requirements.  

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In re PRB Docket No. 2006-167, 925 A.2d 1026 (Vt. 2007)

VT: Underlying criminal defense

Student Contributor: Eric B. Kang

Facts: Lawyer represented client in a criminal matter and after a jury convicted client, the court imposed a prison sentence. Client then asked lawyer to file an appeal. Lawyer filed the appeal five days after the deadline, and the court dismissed the appeal as untimely. Thereafter, the Prisoners’ Rights Division of the Defender General’s office filed a petition for post-conviction relief alleging that lawyer’s untimely filing of the appeal constituted ineffective assistance of counsel. Lawyer cooperated in that proceeding as a potential witness. Client received another chance to file an appeal and did so. Nevertheless, the court denied client’s appeal on the merits. Client then filed a professional conduct complaint against lawyer, alleging that in filing the appeal, he failed to act diligently and promptly, as per Vermont Rules of Professional Conduct. The Hearing Panel of the Professional Responsibility Board held that missing the deadline to file the appeal did not violate the applicable rule of professional conduct. After the Board dismissed the complaint, the Disciplinary Counsel appealed.

Issue: Did lawyer’s failure to file a timely appeal constitute a violation of the rules of professional conduct?

Ruling: No. The court agreed with the Hearing Panel, which found that “a single isolated act of negligence did not constitute misconduct under the rules.” In re PRB Docket No. 2006-167, 925 A.2d 1026, 1028. Further, the rules are “intended to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar.” Id. (quoting In re Berk, 602 A.2d 946, 950 (Vt. 1991)). Here, after realizing he missed an important deadline, lawyer worked to remedy his error with client and subsequent counsel. Eventually, client was afforded his appellate rights. The court took note of lawyer’s efforts to fix his mistake and the availability of remedies to correct the error. Although, depending on the seriousness of the error, a single negligent act or omission may constitute misconduct, the court held that the totality of the circumstances in this case did not raise lawyer’s act to misconduct under the rules. “Attorneys are held to a high standard of conduct, but absent injury or other factors, a single mistake does not show a lack of reasonable diligence or promptness.” Id. at 1029.

Lesson: Everyone makes mistakes, even/especially attorneys. However, if the attorney makes an effort to correct the error and the client does not suffer irreparable harm, the attorney is likely to avoid a violation of misconduct under the rules of professional responsibility.
 

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Reed v. Glynn, 724 A.2d 464 (Vt. 1998)

VT. Underlying Criminal Defense

Student Contributor:  Eric B. Kang

Facts: Lawyer had a contract with the Windsor County defender general to provide representation to indigent defendants in cases in which the public defender was disqualified because of a conflict of interest or was otherwise unavailable. The contract explicitly stated that he would act in an independent capacity, and not as an employee of the state. Lawyer represented client in a probation revocation proceeding. After the court found the client guilty of violating the terms of his probation and sentenced him to 3-5 years in jail, the client sued lawyer because he was dissatisfied in part for not exploring a favorable plea agreement with the probation officer and the state’s attorney. The trial court granted lawyer’s motion for summary judgment, in which the lawyer argued that he was a state employee and thus could not be sued. Client appealed.

Issue: Whether lawyer contracted to provide representation for indigent clients for the state is considered a state employee.

Ruling: No. The court here looked at the definition of “state employee” in Vermont statute, which defined a state employee to include “any elective or appointive officer or employee within the legislative, executive or judicial branches of state government or any former such employee or officer.” 3 V.S.A. §1101(b). Looking at the plain meaning of the statute, the court held that the lawyer did not fit within the definition of a “state employee,” and was neither an “officer” nor an “employee” of state government. The court then noted that under common law, if “the party for whom the work is being done … specif[ies] the result only, and the [party performing the work] may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor.” Reed v. Glynn, 724 A.2d 464, 466 (quoting Kelley’s Dependents v. Hoosac Lumber Co., 95 Vt. 50 (1921)). Here, the court noted that the defender general had no control over the means and methods by which the lawyer provided representation to indigent clients.

Lesson: When lawyers contract for employment with the state, that relationship alone will not convince courts to recognize that the lawyer is a “state employee.” Rather, like any other employment relationship, the courts will look at the nature of the employment and assess whether this was an employee-employer relationship, or the lawyer is an independent contractor.

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Alvarez v. Casita Maria Inc., 269 F. Supp. 2d 834 (N.D. Tex. 2003)

TX: Underlying conviction for illegal reentry into the U.S.

Student Contributor: Megan Diodato

Facts:  The clients, illegal aliens, contacted Casita Maria, Inc. to arrange for immigration counseling services. In the course of that counseling, the clients met with multiple Casita employees, who counseled them to file certain forms and fees with the Immigration and Naturalization Service (INS). An employee of Casita filled out these forms for the clients and afterward an attorney reviewed the forms and opined that they were complete and ready to be filed. Upon advice of another Casita employee, the clients mailed the documents to their local district’s INS. Once the INS became aware of the client’s whereabouts, the INS scheduled an interview with them, which a Casita employee attended. At the interview, the clients were notified that his application to register for permanent residence would likely be denied. The client was later arrested, charged with illegally reentering the U.S., and sentenced to prison. The client alleged that the attorney is liable for legal malpractice in failing to counsel him to submit the correct INS forms and but for this negligence he would not have been imprisoned.

Issue: Whether claims of legal malpractice may be brought where the conviction has not been overturned?

Ruling: No  Under Texas law, claims of malpractice and negligence based on a criminal conviction may not be brought unless that conviction has been overturned. Peeler v. Huges & Luce, 909 S.W.2d 494 (Tex. 1995). In Peeler, the Court held that “as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned.” Id. at 498. Although the client’s claims of negligence and malpractice arise from representation in an administrative law setting rather than criminal, the harm to him is the same. Client seeks damages for his incarceration. Convicts may not shift the consequences of their crime to a third party. The client was incarcerated here because he plead guilty to a charge of illegal re-entry, not because of any action or inaction on part of attorney. Attorney’s motion to dismiss granted.

Lesson: Claims of legal malpractice seeking damages due to incarceration, including administrative law settings, may not be brought unless the conviction has been overturned. 

Editors Note: See our post on Padilla v. Kentucky for an update on the US Supreme Court's view of ineffective assistance of counsel. 

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State of New Jersey v. Frensel Gaitan, Appellate Division, February 7, 2011.

Underlying case: Ineffective Assistance of Counsel, Criminal Defense

Facts: Defendant pled guilty to third-degree distribution of a controlled substance within 1000 feet of a school, and was sentenced to 5 years probation.  Approximately three years later, defendant filed suit against his former attorney alleging ineffective assistance of counsel.  More specifically, he alleged that his attorney failed to discuss with him the deportation consequences of his guilty plea.  

The lower court denied defendant's petition for ineffective assistance of counsel and he appealed.

Issue: Does the failure to provide any advice with regard to deportation consequences of a guilty plea constitute ineffective assistance of counsel?

Ruling: Yes.  The Appellate Division granted defendant an evidentiary hearing as to the content and scope of his former attorney's advice, if any, regarding his potential removal from the country upon entering a guilty plea and noted: 

Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement...When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.

Lesson: Attorneys have an affirmative obligation to discuss the possibility of deportation when providing advice about the pros and cons of entering a guilty plea. Going forward, before a non-citizen defendant pleads guilty to a deportable offense, the Court must hold a hearing as to whether the defendant in a criminal case received the effective assistance of counsel. 

Other Cases: Padilla v. Kentucky, (US Sup. Ct. 2010);  State of NJ v. Nunez-Valdez (NJ Sup. Ct. 2009)

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Marrero v. Feintuch, N.J. App. Div., January 25, 2011.

Facts: Marrero was convicted of armed robbery and sentenced to five years prison.  After serving one year and eight months, Marrero was released after his indictment was dismissed.  

Shortly, thereafter, Marrero filed suit against his attorneys in the criminal action.  He alleged that his attorneys had failed to investigate or properly interview witnesses, neglected to support Marrero's alibi by introducing his certified telephone records to show he was speaking to his girlfriend about the time the robbery occurred, undermined Marrero's alibi during summation by improperly suggesting Marrero may have been talking to his girlfriend on a cell phone and improperly cross-examined plaintiff, allowing him to reiterate his out-of-court identification despite his inability to identify Marrero during trial.

In the legal malpractice action, Defendants subpoenaed certain information that would establish that Marrero was in fact guilty of the alleged crime.  The trial court quashed the subpoena and found that Marrero's guilt or innocence had nothing to do with the malpractice action.  Defendants appealed.

Issue: Is a criminal defendant required to establish his innocence before pursuing a negligence claim against his former attorneys? 

Ruling: In coming to a determination, the Appellate Division first referenced its decision in McKnight v. Office of Public Defender, 397 N.J.Super. 265 (App. Div. 2007).  In McKnight, the Court held: 

[T]he requirement of actual innocence illogically and unfairly bars valid and legitimate claims of malpractice...both the innocent and the guilty are entitled to competent counsel.

In McKnight, the Court identified a two track approach to determine when a claim of legal malpractice accrues in a criminal action:  (1) actual knowledge of malpractice; and (2) the plaintiff takes steps to undo some of the harm allegedly caused by the negligent attorney.

Accordingly, innocence was not a prerequisite to Marrero's action.  Nevertheless, the Appellate Court determined that Defendants were entitled to pursue the subpoena which had been quashed by the trial court.  To the extent discovery is reasonably calculated to lead to admissible evidence, it must be allowed.  Here, the requested discovery was necessary for Defendants to establish a timeline of the events, question Marrero's alibi, and establish that their professional judgment during trial was not negligent.  

Further, the Court held that while "a trial within a trial" is not the only way to proceed in a legal malpractice action involving an underlying criminal matter, a court should not get involved in the decision unless there is disagreement between the parties as to this issue, and even then, only after the completion of discovery

Lesson: In New Jersey, innocence is not a prerequisite to bringing a legal malpractice claim. However, the Defendant attorneys will be entitled to all relevant discovery to establish that their alleged negligence was not the proximate cause of any damages sustained by the plaintiff, including evidence that may tend to establish the guilt of  the malpractice plaintiff.

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Edwards v. Thorpe, 876 F. Supp. 693 (E.D. Pa. 1995).

PA: Underlying FBI investigation

Student Contributor: Laura Binski

Facts: Mr. Edwards (the client) was taken hostage in a robbery attempt of the bank where he worked as an assistant manager. After the event, Mr. Edwards sought legal counsel from Mr. Thorpe (the lawyer). In March of 1989, the lawyer sent a letter to the client’s boss stating: “I am Causley Edwards’ attorney and I have been informed that the FBI considers him a suspect in a recent robbery attempt…” The client claims that the lawyer had no reason to believe the FBI has listed him as a suspect. As a result of the letter, the client was placed on suspension without pay from his job at the bank until the FBI investigation cleared the client’s name or he was prosecuted and acquitted. The client was not exonerated until five years later, in April of 1994. The client filed a suit against the lawyer in October of 1994 for legal malpractice, breach of contract, and defamation.

Issue: Should the client’s claims be subject to Pennsylvania’s two-year statute of limitations? Does the statute of limitations begin to run at the time the alleged breach of fiduciary duty occurs or, as the client claims, when he is harmed?

Ruling:  The client’s claim will be subject to the two-year statute of limitations. Thus, the claim is barred because the complaint was not filed until five years after the alleged breach of fiduciary duty – when the lawyer sent the letter to the bank. The client cannot claim that he did not discover the letter, or the suspension it caused until after the FBI exonerated his suspected involvement in the robbery attempt.

Lesson: The client tried to make the claim that he could not file his lawsuit against the lawyer until after the FBI exonerated him of any involvement on the basis that if he were found to be guilty, he would have suffered no damages as a result of the lawyer’s misconduct. This claim contradicts the client’s assertion that he was harmed as a result of the suspension from his job and damage to his reputation. This case demonstrates the importance of attention to statutes of limitations. If the client had filed his complaint within two-years from the time that the breach of fiduciary duty occurred, it likely would not have been dismissed.

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Alvarez v. Casita Maria Inc., 269 F. Supp. 2d 834 (N.D. Tex. 2003)

TX: Underlying conviction for illegal reentry into the U.S.

Student Contributor: Megan Diodato

Facts:  The clients, illegal aliens, contacted Casita Maria, Inc. to arrange for immigration counseling services. In the course of that counseling, the clients met with multiple Casita employees, who counseled them to file certain forms and fees with the Immigration and Naturalization Service (INS). An employee of Casita filled out these forms for the clients and afterward an attorney reviewed the forms and opined that they were complete and ready to be filed. Upon advice of another Casita employee, the clients mailed the documents to their local district’s INS. Once the INS became aware of the client’s whereabouts, the INS scheduled an interview with them, which a Casita employee attended. At the interview, the clients were notified that his application to register for permanent residence would likely be denied. The client was later arrested, charged with illegally reentering the U.S., and sentenced to prison. The client alleged that the attorney is liable for legal malpractice in failing to counsel him to submit the correct INS forms and but for this negligence he would not have been imprisoned.

Issue: Whether claims of legal malpractice may be brought where the conviction has not been overturned?

Ruling: No. Under Texas law, claims of malpractice and negligence based on a criminal conviction may not be brought unless that conviction has been overturned. Peeler v. Huges & Luce, 909 S.W.2d 494 (Tex. 1995). In Peeler, the Court held that “as a matter of law, it is the illegal conduct rather than the negligence of a convict’s counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned.” Id. at 498. Although the client’s claims of negligence and malpractice arise from representation in an administrative law setting rather than criminal, the harm to him is the same. Client seeks damages for his incarceration. Convicts may not shift the consequences of their crime to a third party. The client was incarcerated here because he plead guilty to a charge of illegal re-entry, not because of any action or inaction on part of attorney. Attorney’s motion to dismiss granted.

Lesson: Claims of legal malpractice seeking damages due to incarceration, including administrative law settings, may not be brought unless the conviction has been overturned. 

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Tolliver v. McDonnell, 155 Ohio App.3d 10 (2003).

OH: Underlying criminal defense; ineffective assistance of counsel.

Student Contributor: Shiv Vydyula

Facts: Because appellant Tolliver was indigent, the court overseeing his indictment for conspiracy and for murder appointed McDonnell as his attorney. A jury acquitted Tolliver of murder but found him guilty of conspiracy to commit aggravated murder. The court sentenced Tolliver to a term of incarceration. A few months after, McDonnell withdrew as Tolliver’s counsel. The court appointed new counsel for purposes of appeal. Tolliver instructed his new counsel to file a claim for ineffective assistance of counsel alleging that McDonnell had failed to assert a defense for the conspiracy charge where the statute of limitations had run on that charge. The trial court dismissed Tolliver’s legal malpractice claim against McDonnell as untimely. Tolliver claims though that the statute of limitations tolled until the court rendered the opinion in the appeal of the criminal action.

Issue: Did the statute of limitations on the legal malpractice claim effectively toll until the court ruled on the appeal in the criminal matter?

Ruling: The court ruled that the claim was untimely. The court leaned on case law that supported that cognizable events begin the statute of limitations focus on what the client is aware of and not on extrinsic judicial determinations. The court ruled that the cognizable event here was when Tolliver instructed his new counsel to file the appeal.

Lesson: Cognizable events and their analysis seem to lean towards prevention. Here, it prevents the attorney being sued for malpractice from being exposed to suits with overly broad statutes of limitations for bringing claims. Clearly the outcome in the criminal case suggests there was something that McDonnell could have seen, but ultimately, the statute of limitations saved him.
 

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Diaz v. Paul Kennedy Law Firm, 289 F.3d 671 (10th Cir. 2002).

N.M.: Underlying criminal matter

Student Contributor: Manju Sunny

Facts: Plaintiffs, clients in the matter, brought suit against defendants, their attorneys. Plaintiffs retained defendants to represent them in criminal cases filed in the New Mexico state court. Defendants charged plaintiffs a flat fee of $15,000. There was no written fee agreement. Clients became unhappy with attorneys’ representation especially with regards to clients accepting a plea offer that attorneys believed to be highly favorable. As a result, plaintiffs rejected the plea offer, discharged the attorneys, and demanded the retainer fee back claiming ineffective representation.

Issue: Does  a court have the power to reduce the amount fixed by a contract between a client and attorney, if there is no showing of misconduct or neglect on the part of the lawyer?

Ruling: No. Under New Mexico law, if the parties have reached a contract of retainer that fixes the amount of the attorney’s compensation, and the attorney has not offended it , either through misconduct or neglect in providing professional services, the court does not have the power to reduce the amount fixed by the contract.

Lesson: Although the laws vary state to state, in New Mexico, where the attorney has not committed misconduct or neglect, a client cannot simply change the retainer fee agreement, and only pay the attorney for services rendered up to the discharge. If this were allowed, there would be no purpose in a client and attorney contracting, and would thus put the attorney at an unfair disadvantage.

Editor's Note: Interestingly, the Court must have felt that the flat fee  charged for the underlying defense services was reasonable under the circumstances, since  it did not mention that all attorneys fees are required to be reasonable, under RPC 1.5. 

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Black v. California Appellate Project, Court of Appeals of California, Second District, Division Four, June 4, 2010 (Unpublished).

Facts: Plaintiff was convicted of first degree burglary, and based on his prior criminal history, was sentenced to 38 years to life.  Plaintiff appealed and the appellate court affirmed his conviction.  Shortly thereafter, Black filed an action for negligence against the California Appellate Project, the organization that had appointed his defense counsel.  The trial court dismissed Black's negligence action and Black appealed.

Issue: Is a public interest organization liable for the quality of legal services rendered by an attorney that it selects and appoints to handle pro bono matters? 

Ruling: Yes. 

CAP argued that, based upon prior California decisions, Plaintiff first needed to establish a duty on the part of a government entity that could lead to potential tort liability for professional malpractice.  It argued that under the California Tort Claims Act, government tort liability depends on the existence of a statute, and Plaintiff failed to cite any statute guaranteeing that CAP would provide him with legal representation free of attorney neglect or fault. 

The Court, however, looked to CAP's website which provided that its duty included not only the appointment of counsel on behalf of indigent criminal defendants, but also the evaluation of "appointed counsel's performance in order to match attorney skill and experience with the complexity level of each particular case," "review appointed counsel's work," and "provide a quality control function, helping to ensure that panel attorneys have available the resources necessary to provide effective representation..."

The Court further noted that CAP was not a "governmental entity" and, moreover, its work did not involve the type of "policy decisions" that are insulated from liability under the Tort Claims Act. 

Finally, the Court rejected CAP's argument that it was entitled to quasi-judicial immunity: 

[T]he availability of the immunity turns on whether the person is functioning as an advocate or a nonadvocate...[T]he acts performed by [CAP was] not judicial in nature...[The acts] involved selecting defense counsel; they may also have involved substantive review of appointed counsel's appellate representation.  [CAP's] role n no way involved fact-finding or other quasi-judicial functions.

Lesson: Public interest organizations that engage in something more than the mechanical process of appointing counsel do not appear to be protected from professional negligence actions in California.

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Black v. White, Court of Appeals of California, Second District, Division Four, April 27, 2010

Facts:  Plaintiff filed this malpractice action against his criminal attorney after his conviction for first degree burglary was affirmed.  The trial court sustained the attorney's demurrer to Plaintiff's complaint on the basis that actual innocence is a prerequisite to filing a malpractice action in California.  Plaintiff appealed and argued that his petition for writ of habeas corpus had not yet been decided.  Accordingly, he alleged that the trial court was required to stay the action pending resolution of the underlying matter. 

Issue:  In the event plaintiff pursues a malpractice action in California prior to obtaining the necessary postconviction relief, should the court stay the action or dismiss it for failure to establish one of the necessary "elements" of a legal malpractice action? 

Ruling:  The action ought to be stayed until the underlying matter is resolved.  In California, actual innocence is a necessary element of plaintiff's malpractice action: 

[P]ermitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.

The Court further discussed that this policy promoted judicial economy, since issues litigated to obtain postconviction relief, including ineffective assistance of counsel, would be duplicated in a malpractice action.

This requirement of exoneration, however, poses a statute of limitations dilemma for the criminal defendant.  In California, a legal malpractice action must be filed within one year of the client's discovery of the malpractice, or four years from the date of actionable malpractice, but in no event can the time to commence the action exceed four years.  In matters involving postconviction proceedings, however, the statute of limitations would run long before the individual established his "actual innocence". 

Accordingly, the Court applied the "two-track approach":  Although plaintiff must file the malpractice action within the applicable limitations period, the court should stay the action during the period in which plaintiff "timely and diligently" pursues postconviction remedies.

Lesson:  A criminal defendant may pursue his action for legal malpractice within the statute of limitations.  In the event he is not able to establish "actual innocence" because the criminal matter is not yet concluded, the malpractice action will be stayed pending a decision in the underlying action.

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Harris v. Farmer, Court of Appeals of Michigan, February 4, 2010

Facts:  Defendant served as Plaintiff's court-appointed attorney in a criminal proceeding in which plaintiff was charged with identity theft.  The prosecution alleged that plaintiff attempted to use another individuals social security number to obtain employment.  Plaintiff was convicted and his claim for ineffective assistance of counsel was rejected. 

Plaintiff subsequently filed an action for legal malpractice against his court-appointed attorney, alleging that he had failed to properly cross-examine a witness, failed to object to evidence offered by the prosecution, and failed to present necessary evidence.  The attorney moved for summary judgment, and the lower court granted his motion.  Plaintiff appealed.

Issue:  Are counsel's alleged shortcomings at trial actionable as professional negligence? 

Ruling:  No. 

Although an attorney has the duty to fashion a strategy so that it is consistent with prevailing Michigan law, he does not have a duty to ensure or guarantee the most favorable outcome possible

***

[M]ere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence.

The Court further noted that even if the attorney had done everything Plaintiff complained he did not do, the result of the proceeding would not have been different.  Accordingly, the Court affirmed the dismissal of the malpractice action.

Lesson:  Decisions involving trial tactics or litigation strategy are not subject to attack in an action for legal malpractice pursuant to Michigan law.  This is especially so where counsel's professional judgment was not the cause in fact of his former client's alleged injuries. 

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Sash v. Schwartz,  2007 WL 30042 (S.D.N.Y. 2007).

N.Y. underlying criminal conviction

Student contributor: Cheryl Neuman

Facts: Plaintiff was represented by defendant attorney in a criminal proceeding. Plaintiff was arrested for unlawfully possessing and producing N.Y.P.D. badges and selling counterfeit police badges. He was also arrested for possession of counterfeit bar code stickers for merchandise at K-Mart stores. After appearing before the magistrate judge, plaintiff pled guilty to two counts. He was  sentenced to eight years of supervised release. The Second Circuit affirmed the conviction but decreased the supervised release to three years. Plaintiff was also indicted for fraud, arising from filing false insurance documents claiming that his wife had been killed in the World Trade Center attacks on 9/11. Plaintiff claims that but-for defendant’s negligent representation, he would not have pled guilty to the various crimes with which he was charged.

Issue: Is the defendant liable to the plaintiff for legal malpractice?

Ruling: No, the defendant is not liable to the plaintiff for legal malpractice because a criminal defendant must show that the alleged legal malpractice was the “cause of the conviction.” Claudio v. Heller, 119 Misc.2d 432 (N.Y. Sup. Ct. 1983). The standard for a criminal defense malpractice claim differs from the standard for civil legal malpractice.  A plaintiff must allege his innocence of the underlying offense to successfully bring a legal malpractice case against his attorney in an underlying criminal proceeding. The elements of a malpractice case in N.Y. are:
1) A duty
2) A breach of the duty, and
3) Proof that actual damages were proximately caused by breach of the duty

Lesson: “A criminal defendant may be able to prove that but for the action of his counsel he would have invoked the 5th amendment or succeeded in suppressing evidence.” Carmel, 70 N.Y.S.2d 173. A criminal defendant, however, who pled guilty or was found to be guilty, cannot assert his innocence. It is for that reason that a criminally convicted plaintiff cannot bring a legal malpractice cause of action under these circumstances. Had the conviction been overturned or vacated, then plaintiff’s claim might  not have been barred.

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SUPREME COURT OF THE UNITED STATES
Syllabus
PADILLA v. KENTUCKY
CERTIORARI TO THE SUPREME COURT OF KENTUCKY
No. 08–651. Argued October 13, 2009—Decided March 31, 2010

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post conviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from er-roneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

(a) Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitablefor a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen de-fendants who plead guilty to specified crimes. Pp. 2–6.

(b) Strickland v. Washington, 466 U. S. 668, applies to Padilla’s claim. Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” McMann v. Richardson, 397 U. S. 759, 771. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about deportation concerned only collateral matters. However, this Court has never distinguished between direct and collateral consequences in defining the scope of constitutionally “reason-able professional assistance” required under Strickland, 466 U. S., at 689.

The question whether that distinction is appropriate need not be considered in this case because of the unique nature of deportation. Although removal proceedings are civil, deportation is intimately related to the criminal process, which makes it uniquely difficult to classify as either a direct or a collateral consequence. Because that distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation, advice regarding deportation is not categorically removed from the ambit of the Sixth Amend-ment right to counsel. Pp. 7–9.

(c) To satisfy Strickland’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U.S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id., at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the . . . right to remain in the United States’ ”and “preserving the possibility of” discretionary relief from deporta-tion. INS v. St. Cyr, 533 U. S. 289, 323. Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland’s first prong.Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance. Pp. 9–12.

(d) The Solicitor General’s proposed rule—that Strickland should be applied to Padilla’s claim only to the extent that he has alleged affirmative misadvice—is unpersuasive. And though this Court must be careful about recognizing new grounds for attacking the validity of guilty pleas, the 25 years since Strickland was first applied to ineffective-assistance claims at the plea stage have shown that pleas are less frequently the subject of collateral challenges than convictions after a trial. Also, informed consideration of possible deportation canbenefit both the State and noncitizen defendants, who may be able toreach agreements that better satisfy the interests of both parties. This decision will not open the floodgates to challenges of convictions obtained through plea bargains. Cf. Hill v. Lockhart, 474 U. S. 52,58. Pp. 12–16. 253 S. W. 3d 482, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opin-ion concurring in the judgment, in which ROBERTS, C. J., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined

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Smith v. Spisak, 130 S.Ct. 676 (Jan. 12, 2010).

Underlying Criminal Matter

Facts:  Frank G. Spisak, Jr. was convicted in an Ohio trial court of three murders and two attempted murders. He was sentenced to death. He filed a habeas corpus petition in federal court alleging constitutional errors at trial. Spisak claimed that he suffered significant harm, in part, as a result of his counsel’s inadequate closing argument at the penalty phase of the proceeding. The Federal Court of Appeals accepted Spisak’s argument and ordered habeas relief. The State of Ohio sought certiorari and the United States Supreme Court granted the petition.

Spisak claimed that his counsel’s closing argument at the sentencing phase of his trial was so inadequate as to violate the Sixth Amendment. In his closing argument at the penalty phase, Spisak’s counsel allegedly portrayed him as “sick, twisted and demented…[that he] was never going to be any different”, and that even if Spisak was not legally insane so as to warrant a verdict of not guilty by reason of insanity, he nonetheless was sufficiently mentally ill to lessen his culpability to the point where he should not be executed. Counsel further argued that “humanity” required the jury to weigh the evidence “fairly”.

Spisak claimed the closing argument was constitutionally inadequate because it (1) emphasized the gruesome nature of the killings and Spisak’s threats to continue his crimes, (2) understated the facts that demonstrated Spisak’s mental illness; (3) said nothing about mitigating circumstances; and (4) made no explicit request for a verdict against death.

Issue:  Did the flaws in counsel's oral argument constitute valid grounds for Spisak's claim for ineffective assistance of counsel? 

Ruling:  The Supreme Court found that there was no reasonable probability that a better closing argument would have made a significant difference, given counsel’s concerted effort to bring Spisak’s mental illness to the forefront by producing three experts who testified at length with respect to the connections between Spisak’s crimes and his mental illness. More importantly, the Court found that Spisak’s own damning testimony that Adolf Hitler was his “spiritual leader in a war for survival…[and] his duty [was] to inflict the maximum amount of casualties on the enemies…again and again and again and again” left no doubt that counsel’s closing argument did not make any significant difference in the jury’s decision to sentence Spisak to death. Furthermore, the Court noted that Spisak could point to no mitigating circumstances, and counsel’s references to “humane people” and “humane society” were sufficient appeals for mercy.

Lesson:  Any inadequacies in counsel's arguments at trial may be rendered moot if the client's admissions leave no reasonable probability that a more adequate performance by counsel would have changed the jury’s verdict.  

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Rogers v Williams,  420 Pa. Super. 396; 616 A.2d 1031 (Super 1992)

PA Underlying criminal defense

Student Contributor: Candice L. Deaner

Facts: Plaintiff attorneys brought suit against Defendant to collect balance of attorneys fees owed to them, and Defendant filed a counterclaim. Defendant was represented by Plaintiff attorneys, where client plead guilty to mail fraud. Defendant alleges she is innocent, that she pleaded guilty only because counsel advised her to. She asserts that she was never advised by counsel that she might be deported if she pleaded guilty. Summary judgment was granted dismissing her complaint, for failure to establish the necessary elements for a professional negligence cause of action. 

Issue: Whether an attorney is required to advise a criminal defendant of the collateral consequences of a guilty plea.

Ruling: The Court held that in criminal matters, ordinary skill and professional competence do not require an attorney to advise a client of the collateral consequences of a guilty plea, including the possibility of deportation. 

1) The three elements of a cause of action for legal malpractice are: (1) the employment of the attorney or other basis for his duty to act as an attorney; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff

Counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance.

The court held that a defendant's incomplete awareness of collateral consequences of a guilty plea does not render that plea involuntary.

Lesson: In PA, An attorney does not have a duty to advise a criminal defendant of collateral consequences of a guilty plea, even if those consequences are as harsh as deportation. There are many collateral consequences of a guilty plea, such as loss of the right to vote, loss of employment etc. and it would not be practical to require an attorney to disclose all the possible effects of the guilty plea. An attorney is only required to advise their client of the direct consequences of their guilty plea.

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Bailey v. Tucker, 533 Pa. 237 (1993)

PA Underlying Action-Criminal Defense

Student Contributor: Candice L. Deaner

Facts: Plaintiff was convicted of first degree murder and sentenced to life imprisonment. He was represented at trial by defendant attorney. Subsequent to the guilty verdict, plaintiff alleged that his criminal defense lawyer had been ineffective in failing to investigate and adequately pursue an intoxication defense on his behalf. Finding some merit to this claim, the court revisited his case and ultimately found him guilty of a much lesser offense. Having already served 9 years on the previous conviction, plaintiff was released. His subsequent suit against defendant attorney alleged both negligence and breach of contract.

Issue: What are the elements of a legal malpractice case arising from an allegedly botched defense in an underlying criminal prosecution?

Ruling: The court decided to recognize criminal malpractice actions subject to the following :1) The employment of the attorney; 2) Reckless or wanton disregard of the defendant’s interest by the attorney; 3) The plaintiff’s innocence in the underlying case if not for the attorney’s malpractice; 4) Damages suffered by the criminal defendant/plaintiff; and, 5) Plaintiff’s full pursuit of available post-trial remedies. The standard was set because criminal defendants are afforded several opportunities to insure that injustice has not been committed during their prosecution. The Court noted:
1) Defense counsel should not use a criminal defendant’s access to the appellate courts as a shield to liability. Even though criminal defendants may appeal a conviction in the ordinary course of a prosecution, such a remedy does not address the “time and suffering spent under the burden of an unwarranted conviction.” Therefore some cases may award damages.
2) Imposing the same burden of proof on criminal plaintiffs as that required of civil plaintiffs may have a chilling effect on defendant representation. The court worried that availability of actions by defendants against their former attorneys would provide a powerful disincentive among practitioners to take on such cases. 

Lesson: Criminal defendants face greater burdens in proving malpractice because courts have identified concerns regarding the extension of this cause of action to convicted criminals. The court felt that too broad an application would effectively chill the criminal defense bar and award money to wrongdoers. Rather than eliminate the right to sue one's allegedly negligent criminal defense lawyer altogether, Pennsylvania courts will instead impose greater burdens on criminal plaintiffs to protect the interests of both attorneys and potential clients.

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Alevras v. Tacopina, 399 F.Supp.2d 567, (N.J. 2005); 

NJ Underlying criminal action.

Student Contributor: Colleen Gaedcke

Facts: The plaintiff was prosecuted and indicted on various counts of criminal violations in federal criminal court. He was appointed counsel but later retained the defendants to represent him. With the advice of his attorneys the plaintiff accepted an unfavorable plea agreement and began serving his sentence. After the plaintiff entered his guilty plea, he brought a 20 U.S.C. β 2255 motion, pro se, alleging ineffective assistance of counsel. His motion was denied by the District Court and the plaintiff appealed to the Third Circuit. The District Court held four evidentiary hearings on remand regarding the plaintiff’s motion, but the plaintiff’s petition was denied for a second time and affirmed by the Third Circuit. Then the plaintiff filed a seven count civil complaint against the defendant alleging legal malpractice. The defendant moved to dismiss the complaint and made a motion for summary judgment.

Issue: Whether the doctrine of collateral estoppel bars a criminal defendant from making civil legal malpractice claims for criminal malpractice where claims for ineffective assistance of counsel have been adjudicated, decided and rejected in a 20 U.S.C. β 2255 criminal proceeding?

Ruling: Yes. In granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint with prejudice, the District Court held that the doctrine of collateral estoppel bars a legal malpractice claim against a criminal defense attorney based on the following reasoning:
1) The doctrine of collateral estoppel prevents a party from re-litigating issues that have previously been adjudicated and decided previously by another court of competent jurisdiction. Thus, where the issue of ineffective assistance of counsel has been fully litigated in the post-conviction proceeding, it may not be considered again in a civil proceeding.
2) As a matter of public policy, we cannot allow criminal defendants to re-litigate issues in civil court where the same issue was litigated by a court of competent jurisdiction. To allow otherwise would undermine the effective administration of the judicial system.  

Lesson: A criminal defendant cannot bring a legal malpractice case concerning the quality of his criminal defense counsel when he raised or had a full and fair opportunity to raise the issue  of ineffective assistance of counsel and he knew the facts regarding the attorneys alleged malpractice during the criminal proceedings.

 

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Lawson v. Nugent, 702 F. Supp. 91, (N.J. 1988); 1988 U.S. Dist. LEXIS 14576

NJ Underlying criminal action.

Student Contributor: Coleen Gaedcke

Facts: The plaintiff retained the defendant as defense counsel after being indicted for robbery of a post office. Upon the advice of the defendant, the plaintiff pleaded guilty and was sentenced to 25 years in prison. While in prison the plaintiff retained new counsel and obtained a reduction in his sentence and was released after serving 5 years. The plaintiff then brought a legal malpractice case against the defendant where he alleged that but for the defendant’s negligent legal representation he would have served a maximum of 40 months in prison. The plaintiff sought damages for emotional distress as a result of the anguish he suffered for the extra 20 months he spent in prison as a result of the defendant’s representation.

Issue: Whether a criminal defendant can recover damages for emotional distress from his attorney in a legal malpractice action based on the attorney’s representation in a criminal proceeding?

Ruling: Yes. The District Court held that the plaintiff may present evidence of emotional distress damages in a legal malpractice action.
1) Generally, damages in a legal malpractice claim are limited to economic loss and damages for emotional distress are not recoverable in a legal malpractice action absent some egregious or extraordinary circumstances.
2) In New Jersey, the courts have increasingly allowed for emotional damages in an increasing number of cases and a plaintiff may prove such damages attributable to an extra 20 months of confinement in prison.

“an attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty.” 
 

Lesson: When representing a client in a civil case, the court is unlikely to award damages for emotional distress absent extraordinary circumstances because the nature of the attorney client relationship is primarily based on economic interest. However, the attorney client relationship in a criminal proceeding is predicated upon a defendant’s liberty interest.  

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Alevras v. Tacopina, 399 F.Supp.2d 567 (D.N.J. 2005)

NJ Underlying criminal action

Student Contributor: Colleen Gaedcke

Facts: The plaintiff was indicted and prosecuted on various counts of criminal violations in federal court. He was appointed counsel, but later retained the defendants to represent him. Upon advice of the defendant attorneys, plaintiff accepted an unfavorable plea agreement and began serving his sentence. At some point thereafter, the plaintiff brought a 20 U.S.C. 2255 motion, pro se, alleging ineffective assistance of counsel. His motion was denied by the United States District Court, District of New Jersey, and the plaintiff appealed to the Third Circuit. The Court held four evidentiary hearings regarding the plaintiff’s motion, but the plaintiff’s petition was denied. The Court of Appeals, Third Circuit, affirmed the denial. Plaintiff subsequently filed a civil complaint against the defendants alleging legal malpractice. The defendants argued that the legal malpractice claim was barred by the doctrine of collateral estoppel, given the adjudication of plaintiff’s claim for ineffective assistance of counsel.

Issue: Whether the doctrine of collateral estoppel bars a criminal defendant from bringing a civil legal malpractice claim after the adjudication of a claim for ineffective assistance of counsel?

Ruling: Yes. The doctrine of collateral estoppel prevents a party from re-litigating issues that have previously been decided by another court of competent jurisdiction. Thus, where the issue of ineffective assistance of counsel has been fully litigated in the underlying criminal proceeding, it may not be considered again in a civil proceeding under the cloak of a professional negligence claim.

Lesson: New Jersey courts will not allow criminal defendants a second bite at the apple with a civil malpractice complaint after an adjudication on the very same issues in an ineffective assistance of counsel proceeding in the underlying criminal action.

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State of New Jersey v. Dennis Copling, 326 N.J. Super. 417, 741 A.2d 624 (1999)

NJ: Underlying criminal defense

Student Contributor: Evan Michael Hess

Facts: Appellant was convicted of first degree conspiracy to commit murder, first degree murder, manslaughter, possession of a weapon for an unlawful purpose and third degree unlawful possession of a handgun. Represented by the Public Defender’s Office, the Appellant alleged, among other things, that his counsel of record was a personal friend of the chief investigator assigned to the case, and a witness for the State at trial, and that, therefore, possessed a conflict of interest in representation. The Defendant notified his defense counsel that he was concerned with counsel’s ability to perform a competent cross examination of the investigator. Counsel then notified the court of the defendant’s concerns, noting that he did not believe there to exist any conflict of interest. The Court denied the Defense motion to continue. The Court later learned that the Defendant knew of his defense counsel’s preexisting friendship with the chief investigator, but chose not to raise the issue until roughly one year later, shortly before trial.

Issue: Does an attorney’s conflict of interest stemming from a pre-existing friendship, or the appearance of impropriety render a criminal trial fundamentally unfair?

Ruling: Relying on the Rules of Professional Conduct in New Jersey, Section 1.7(b), the Court held:

1) Legal counsel in criminal matters must have undivided loyalty to their clients and have representation that is "untrammeled and unimpaired" by conflicting interests. See State v. Bellucci, 81 N.J. 531, 538 (1980);
2) Friendship alone, without more, should not preclude effective representation;

Lesson: While the appearance of impropriety may exist, a conflict of interest does not exist unless counsel is prevented from serving as a "vigorous partisan" of the client's interest. Furthermore, in accordance with the Rules of Professional Conduct, legal counsel cannot represent a client if the attorney is limited by his/her responsibilities to a third person or limited by the attorney's own interests.

Note: New Jersey's Rules of Professional Conduct  no longer recognizes the appearance of  impropriety as prohibited conduct for lawyers.  

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Lawson v. Nugent, 702 F. Supp. 91 (D.N.J. 1988)

NJ Underlying Criminal Action

Student Contributor: Colleen Gaedcke

Facts: The plaintiff retained the defendant attorney as defense counsel after being indicted for the robbery of a post office. Upon the advice of the defendant attorney, plaintiff pleaded guilty and was sentenced to 25 years in prison. While in prison, the plaintiff retained new counsel and obtained a reduction in his sentence. Eventually, he was released after serving 5 years.
Upon release, plaintiff brought a legal malpractice suit against the defendant attorney alleging that, but for the defendant’s negligent legal representation, he would have served a maximum of only 40 months in prison. The plaintiff sought damages for emotional distress as a result of the anguish he suffered for the additional 20 months he spent in prison, allegedly, as a result of his attorney’s ineffective representation.

Issue: Can a criminal defendant recover damages for emotional distress in a legal malpractice action?

Ruling: Yes. The United States District Court, District of New Jersey, held that the plaintiff may pursue emotional distress damages if he could first establish (1) the existence of some egregious or extraordinary circumstance; and (2) the allegedly negligent attorney was retained to protect something other the plaintiff’s economic interests.

Lesson: Given that the attorney-client relationship in a criminal proceeding is predicated upon the protection of the client’s interest in his freedom and sovereignty, “an attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence, including emotional distress resulting from [his] loss of liberty."

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Daly v. Peace, 863 N.Y.S.2d 770, 2008 N.Y. Slip Op. 06955 (2 Dept.)

NY Underlying criminal action

Student Contributor: Angela Ignelzi

Facts: Plaintiff brought an action against his former defense attorney for legal malpractice after, allegedly, being wrongfully convicted. The attorney made a motion to dismiss plaintiff’s complaint on the grounds that the client could not prove he was innocent of the charges brought against him in the underlying action. The trial court granted the attorney’s complaint and plaintiff appealed the dismissal.

Issue: Did the trial court correctly dismiss plaintiff’s malpractice complaint because of his inability to prove his innocence with regard to the claims asserted against him in the underlying action?

Ruling: The Supreme Court of New York, Appellate Division, Second Department, held that:

(1) The trial court has correctly assessed that the plaintiff could not establish his innocence with regard to the charges made against him in the underlying action, and, therefore

(2) The Plaintiff had no cause of action for legal malpractice against his criminal defense attorney, unless and until he ultimately succeeded in his attempts to have the underlying conviction reversed.

Lesson: A former client, even in an underlying criminal action, can only prevail on a claim for legal malpractice by successfully applying the “suit within a suit” method: No presumption of innocence is available to those convicted in the first place, purportedly, as a result of negligent representation.

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Alampi v. Russo, 345 N.J. Super. 360 (App. Div. 2001)

Student Contributor:  Melissa Goldberg

NJ Underlying Criminal Defense

Facts: Plaintiff, a public accountant, sued his attorney for legal malpractice alleging his professional negligence caused him to plead guilty to a federal misdemeanor charge for refusing to give information to the IRS in a tax investigation. Plaintiff contended that his attorney failed to keep him properly informed about the potential of a criminal investigation and failed to arrange a meeting with the IRS where the government could have been persuaded to either grant him immunity or decide not to prosecute.

Issue: Does an unimpeached guilty plea in a criminal proceeding bar recovery in a legal malpractice action?

Ruling: Yes, Plaintiff cannot seek in a civil action to renounce his federal conviction, or seek money damages for a wrongful conviction based on his guilty plea which he never otherwise attacked, since:
1) He unconditionally pled guilty to a criminal offense committed before representation was commenced; and
2) It would undermine the guilty plea if a defendant were allowed to argue that no prosecution would have occurred if his attorney had used different tactics.

Lesson: Public policy does not permit defendants who have been convicted of a criminal offense from profiting from their illegal conduct by shifting blame to their defense attorneys.

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Daly v. Peace,54 A.D.3d 801, 863 N.Y.S.2d 770, 2008 N.Y. Slip Op. 06955

NY Underlying defense of criminal  action

Student Contributor: Angela M. Ignelzi

Facts: Plaintiff-Client brought an action against his Attorney who had represented him in defending a prior criminal action where he was convicted. Client sought to recover damages for legal malpractice. Attorney made a motion to dismiss the complaint on the grounds that the client could not prove he was innocent. Client appealed the dismissal of his Complaint.

Issue: Was the motion Court correct in dismissing the Client’s malpractice complaint?

Ruling: The Appellate Division (2nd Department), held that:

•  Client could not establish his innocence of the underlying criminal charge
•  Client has no cause of action for legal malpractice against his criminal defense attorney, unless he was ultimately successful in his attempts to have the underlying conviction reversed and he proves his innocence.

Lesson: To prove that his lawyer's allegedly negligent conduct in defending him in an underlying criminal case was the proximate cause of his damage, i.e., his wrongful conviction, the client must have his conviction reversed and he must prove his innocence of the underlying criminal charges. 

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Padilla v. Kentucky, Argued before the US Supreme Court Oct. 13, 2009 (PDF)

Does a lawyer's wrong advice to a client, a permanent resident alien, to plead guilty to a criminal charge that results in his deportation, amount to  ineffective assistance of counsel?

The High Court heard oral argument today. Stay tuned. Read the argument of the parties and the grilling of the Justices.

Smith v. Spisak. Argued before the US Supreme Court on Oct. 13, 2009 (PDF)

How bad does defense counsel's summation have to be before it amounts to ineffective assistance of counsel?  The High Court heard oral argument today  on this too.

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