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

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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