Drollinger v. Mallon
260 P.3d 482
Or.2011Background
- Drollinger, a convicted felon, sues post-conviction counsel Mallon Lamborn and Raschio, PC for legal malpractice and breach of contract.
- Plaintiff previously pleaded guilty in two counties to sex offenses, with judgments entered in 2000; no direct appeals followed.
- Post-conviction petitions were filed in 2002; plaintiff was represented by various appointed attorneys before retaining defendants in 2006.
- Defendants allegedly promised to hire investigators, deponents, experts, and to pursue post-conviction relief, but allegedly limited activity and communications.
- Lamborn withdrew as counsel shortly before a scheduled post-conviction trial; plaintiff faced dismissal of petitions and continued incarceration.
- Circuit court dismissed the complaint as barred by Stevens exoneration rule; Court of Appeals affirmed; Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Stevens exoneration rule extends to post-conviction counsel malpractice | Stevens does not apply to post-conviction context | Stevens applies to all malpractice against counsel connected to conviction | Stevens exoneration rule does not apply to post-conviction counsel malpractice |
| Whether exoneration is prerequisite for a post-conviction malpractice claim | Exoneration not required for post-conviction claims | Exoneration required to prove harm | Prior exoneration not required; can proceed without exoneration |
| Whether plaintiff pled causation sufficiently under a traditional malpractice standard | Pleading may show harm and causation without proving victory in post-conviction | Plaintiff must show but-for failure would have led to relief | Court may permit amendment; need to plead causation with possible relief scenario or non-relief damages |
| Whether loss-of-chance damages are available in legal malpractice against post-conviction counsel | Loss-of-chance should be available | Loss-of-chance not appropriate in legal malpractice | Loss-of-chance doctrine not adopted for this context |
| What is the proper procedural posture on remand | Amend complaint to cure pleading gaps | Stevens framework controls; dismissal affirmed | Remand to permit amendment and develop causation/damages under proper rules |
Key Cases Cited
- Stevens v. Bispham, 316 Or. 221 (Or. 1993) (exoneration rule for malpractice against criminal defense counsel)
- Joshi v. Providence Health System, 342 Or. 152 (Or. 2006) (loss-of-chance-like reasoning rejected in certain contexts)
- Chocktoot v. Smith, 280 Or. 567 (Or. 1977) (case-within-a-case methodology for proving malpractice)
- Harding v. Bell, 265 Or. 202 (Or. 1973) (case-within-a-case methodology in malpractice proof)
- Pennsylvania v. Finley, 481 U.S. 551 (U.S. 1987) (prisoners lack constitutional right to counsel on collateral attacks)