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

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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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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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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