DONALD CLARK, Appellee, vs. STATE OF IOWA, Appellant.
No. 19–1558
IN THE SUPREME COURT OF IOWA
Submitted December 16, 2020—Filed February 26, 2021
Oxley, J.
Appeal from the Iowa District Court for Johnson County, Lars Anderson, Judge.
The defendant brings an interlocutory appeal from the district court’s grant of partial summary judgment on the plaintiff’s legal malpractice claim. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor General, Noah Goerlitz and David M. Ranscht, Assistant Attorneys General, for appellant.
Frank J. Nidey and Clemens A. Erdahl of Nidey, Erdahl, Meier & Araguas, P.L.C., Cedar Rapids, and Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellee.
A criminal defendant who successfully overturns his conviction based on ineffective assistance of counsel may bring a legal malpractice action against his former attorney. Can he then use that successful action to stop his former attorney from claiming he did not breach any duties in the subsequent malpractice action? That question turns on application of the doctrine of issue preclusion, which allows a party to rely on an issue decided in one proceeding to affirmatively establish the same issue in a later proceeding, as long as the party against whom the doctrine is used had a full and fair opportunity to litigate the issue in the first proceeding. Here, a criminal defendant, represented at
For the reasons that follow, we conclude it does not.
I. Factual Background and Proceedings.
In 2010, Donald Clark was convicted of second-degree sexual abuse and received an indeterminate twenty-five-year sentence. State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). The alleged abuse took place during the 2003–2004 school year when Clark was a counselor at an elementary school and worked with a fifth-grade student who accused Clark of inappropriately touching him during a counseling session in Clark’s school office. Id. at 554. There were no witnesses to the alleged abuse and no physical evidence, so the trial came down to a “he said, he said” credibility contest. Clark’s conviction was affirmed on appeal, and we left Clark’s ineffective-assistance-of-counsel claims for further development in postconviction-relief (PCR) proceedings. Id. at 560, 567.
Clark immediately filed a PCR action in August 2012, seeking a new trial based on two grounds: ineffective assistance of counsel and newly discovered evidence. State public defender John Robertson represented Clark in his criminal trial.1 A key point of contention during the criminal trial involved the line of sight into, and the layout of, Clark’s school office. Clark claimed Robertson failed to investigate the scene or offer photographs of the office into evidence to rebut the misleading pictures offered by the prosecution. Clark also claimed Robertson failed to inform him about depositions of key witnesses who testified about the school layout, preventing Clark from assisting in his defense. Without this information, Robertson was unable to effectively rebut the prosecution’s evidence. Finally, Clark argued Robertson failed to present character witnesses after other “bad act” evidence about Clark was admitted at trial.
To support his claim that newly discovered evidence also entitled him to a new trial, Clark offered the student’s subsequent testimony in a parallel civil case the student and his family brought against Clark. The student testified he had not been fully truthful in the criminal case and described other occasions when Clark allegedly touched him inappropriately. Clark presented evidence that questioned whether the new allegations could have occurred as the student testified, which, coupled with the student’s admission he was not fully truthful, called into doubt the student’s credibility.
The PCR court found Clark was entitled to a new trial based on both the ineffective-assistance claims and the newly discovered evidence. The State did not appeal the PCR ruling and declined to prosecute Clark a second time. The charges against Clark were dismissed in July 2016, over six years after he was convicted.
Following his successful PCR action, Clark brought a legal malpractice action to recover money damages. Because Robertson was a state employee in the public
In resistance, the State argued the standard used to judge counsel’s conduct in the ineffective assistance of counsel context is different than the standard used in the malpractice context. The State then argued even if the elements of issue preclusion were met, there was a lack of mutuality between the two cases because, even though the State was the named defendant in both actions, it served in significantly different capacities. Finally, the State argued even if the State could be considered the same party in both cases, other circumstances counseled against using issue preclusion in this context.
Initially, the district court denied Clark’s motion for partial summary judgment on the basis that the standard applied to counsel’s performance under a Strickland2 ineffective-assistance-of-counsel analysis is different than the standard of care required to support a legal malpractice claim. The court therefore did not address the State’s other arguments. On reconsideration, the district court changed course, concluding the standards for an attorney’s conduct are sufficiently similar in both contexts to amount to the same issue under the first prong of issue preclusion. Because the State did not contest the remaining issue preclusion elements, the district court found all elements satisfied.
The district court then addressed, and rejected, the State’s argument that its status as defendant in the malpractice action was different from its status as defendant in the PCR action such that there was a lack of mutuality of parties. The district court concluded that the State, through the Johnson County Attorney’s office, controlled the strategy in defending against the ineffective-assistance claims in the PCR action, and the State, through the attorney general’s office, likewise controls the strategy in defending its employee’s actions in this malpractice action. The district court concluded “the State of Iowa as named in the postconviction proceeding and the State of Iowa as named in the legal malpractice proceeding presently are identical.”
The district court granted Clark’s motion for partial summary judgment, finding the element of breach of duty for Clark’s malpractice claim was conclusively established by the prior PCR ruling and leaving causation and damages to be decided by the jury.
We granted the State’s application for interlocutory appeal and retained the appeal.
II. Standard of Review.
We review the district court’s grant of partial summary judgment for errors at law. Emps. Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012). While we have reviewed application of issue preclusion in a particular case for an abuse of the district court’s discretion, see Fischer v. City of Sioux City, 654 N.W.2d 544, 550 (Iowa 2002) (district court abused its discretion in allowing party to rely on issue preclusion not pleaded and first raised one week before trial); Casey v. Koos, 323 N.W.2d 193, 197 (Iowa 1982) (district court should decide in the first instance whether to apply offensive issue preclusion following completion of appeal process for prior proceeding), the determination
Here, the State challenges the district court’s legal conclusions that the elements of issue preclusion were met and that mutuality was satisfied, so our review is for legal error. See Comes v. Microsoft Corp., 709 N.W.2d 114, 117 (Iowa 2006) (reviewing for legal error a challenge to district court’s application of incorrect legal standard related to issue preclusion); cf. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017) (holding a district court necessarily abuses its discretion if it misapplies the law).
III. Analysis.
To recover for legal malpractice, Clark must prove:
(1) the existence of an attorney–client relationship between the defendant and plaintiff giving rise to a duty; (2) the attorney, by either an act or a failure to act, breached that duty; (3) this breach proximately caused injury to the plaintiff; and (4) the plaintiff sustained actual injury, loss, or damage.
Kraklio v. Simmons, 909 N.W.2d 427, 434 (Iowa 2018) (quoting Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997)). In Iowa, a criminal defendant is not required to prove actual innocence as a prerequisite to a legal malpractice claim against his former criminal attorney.3 See Barker v. Capotosto, 875 N.W.2d 157, 168 (Iowa 2016). The defendant is, however, required to obtain judicial relief related to the purported malpractice before pursuing a malpractice claim. See Kraklio, 909 N.W.2d at 439 (allowing defendant to bring malpractice action based on ineffective assistance related to sentencing proceedings only after first showing “relief from the duration of his supervised probation”); Trobaugh v. Sondag, 668 N.W.2d 577, 583 (Iowa 2003) (adopting “approach that requires a defendant to achieve relief from a conviction before advancing a legal malpractice action” premised on conduct that resulted in an avoidable conviction). When the defendant is represented by a court-appointed attorney, as here, this prerequisite is statutory. See
Clark seeks to short-circuit the malpractice trial by using his successful ineffective-assistance claim to establish the duty and breach elements of the malpractice claim as a matter of law through issue preclusion (or collateral estoppel). Issue preclusion prevents parties from relitigating issues already raised and resolved in a prior action. Emps. Mut. Cas. Co., 815 N.W.2d at 22.
The doctrine “serves a dual purpose: to protect litigants from ‘the “vexation of
Issue preclusion may be used defensively as a shield by “a stranger to the judgment, ordinarily the defendant in the second action, . . . [to] conclusively establish[] in his favor an issue which he must prove as an element of his defense.” Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981) (quoting Goolsby v. Derby, 189 N.W.2d 909, 913 (Iowa 1971)). It may also “be used offensively as a sword by a new plaintiff against a defendant who was a party to the former litigation.” Dettmann v. Kruckenberg, 613 N.W.2d 238, 244 (Iowa 2000) (en banc); see also Emps. Mut. Cas. Co., 815 N.W.2d at 22 (recognizing same use of offensive issue preclusion).
While we no longer require mutuality between the parties, we generally restrict its use only against a party, or one in privity with a party, to the prior suit.5 See Hunter, 300 N.W.2d at 126 (“[T]he absence of mutuality will no longer invariably bar the offensive application of issue preclusion . . . if it is determined that the party sought to be precluded was afforded a full and fair opportunity to litigate the issue in the action relied upon . . . .” (emphasis added)); see also Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 104 (Iowa 2011) (“When used in an offensive manner, the plaintiff in the second action relies upon a former judgment against the defendant to establish an element of his or her claim . . . irrespective of the parties’ mutuality or privity.” (emphasis added) (citation omitted)). As with defensive use of issue preclusion, privity for these purposes exists when
the party against whom issue preclusion is invoked was “so connected in interest with one of the parties in the former action as to have had a full and fair opportunity to litigate the relevant claim or issue and be properly bound by its resolution.”
Dettmann, 613 N.W.2d at 244 (quoting Brown v. Kassouf, 558 N.W.2d 161, 163 (Iowa 1997)).
A party must establish four elements to employ issue preclusion:
(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the
issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.6
Hunter, 300 N.W.2d at 123. Even if the defendant was a party to the prior litigation, offensive use of issue preclusion is applied “more restrictively and cautiously” than when it is used defensively because there are less reasons justifying its offensive use than its defensive use. Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 451 (Iowa 2016) (quoting Gardner v. Hartford Ins. Accident & Indem. Co., 659 N.W.2d 198, 203 (Iowa 2003)); see also Hunter, 300 N.W.2d at 124 (explaining “offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does,” and offensive use may be unfair to a defendant who lacked the same incentive to litigate the first action or who may be afforded more procedural opportunities in a second proceeding that were unavailable in the first, which may cause a different outcome (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S. Ct. 645, 650 (1979))). We therefore consider two additional factors before issue preclusion can be used offensively:
(1) whether the opposing party in the earlier action was afforded a full and fair opportunity to litigate the issues . . . , and (2) whether any other circumstances are present that would justify granting the party resisting issue preclusion occasion to relitigate the issues.
Winger, 881 N.W.2d at 451 (quoting Emps. Mut. Cas. Co., 815 N.W.2d at 22) (holding plaintiff in wrongful death action against landlord could not use city housing board’s citation against landlord regarding railing height to establish landlord’s negligence through offensive issue preclusion because landlord lacked sufficient incentive to challenge city finding, which only subjected landlord to $1090 fine).
Here, the district court concluded that the same parties—Clark and the State—were involved in both the ineffective-assistance claim and the legal malpractice claim, the four underlying elements for issue preclusion were met, and no additional considerations precluded use of the doctrine. We start out analysis by reviewing the use of issue preclusion in the unique context of a criminal malpractice claim following a successful ineffective-assistance claim.
Resolution of this interlocutory appeal centers on the offensive use of issue preclusion in a legal malpractice case brought by a criminal defendant against his public defender trial attorney after obtaining relief from his conviction based on ineffective assistance of counsel. In the reverse situation, criminal defense attorneys may use their client’s unsuccessful ineffective-assistance claim to bar a subsequent
When the situation is reversed, as it is here, and the criminal defendant successfully challenges his conviction based on ineffective assistance of counsel, the only courts of which we are aware to have addressed the issue have rejected offensive use of issue preclusion by the criminal-defendant-turned-malpractice plaintiff. See, e.g., Stewart v. Elliott, 239 P.3d 1236, 1239–42 (Alaska 2010); Noske v. Friedberg, 670 N.W.2d 740, 746 (Minn. 2003) (en banc); Stevens v. Horton, 984 P.2d 868, 872–73 (Or. Ct. App. 1999). The primary reasoning is that an ineffective assistance claim is between the criminal defendant and the state, acting in its capacity as prosecutor, so issue preclusion does not apply as against the attorney who was not a party to the PCR action. The Restatement (Third) of the Law Governing Lawyers takes the same position, recognizing that issue preclusion may be used defensively in a criminal malpractice action to prevent a criminal defendant from relitigating issues decided adversely in a PCR action “even though the lawyer sued was not a party to that proceeding and is hence not bound by any decision favorable to the defendant.” Restatement (Third) of the L. Governing Laws. § 53, at 392 (Am. L. Inst. 2000) (emphasis added).8
Although Alaska applies a more stringent privity test than did Oregon in Stevens, the Alaska Supreme Court relied on similar reasoning in Stewart v. Elliott. The Alaska Supreme Court noted that the defense attorney’s “limited participation in post-conviction relief certainly did not allow him sufficient control to establish privity.” Stewart, 239 P.3d at 1241.
Likewise, even though he submitted an affidavit that gave “him some opportunity to explain his actions, it did not give him the opportunity to more broadly control the litigation.” Id. at 1242. The court supported its conclusion by analogy to a recent case where it “held that a decision against a state social service agency did not bind the state-employed social worker when she was subsequently sued in her individual capacity.” Id. (discussing State v. Doherty, 167 P.3d 64 (Alaska 2007)). The court concluded,
[A]s a matter of sound policy, this is how it should be. For when the government enters the courthouse in order to prosecute criminal conduct or protect a child in need of aid, it should not be distracted from its purpose by the personal interests of its employees.
Id. (quoting Doherty, 167 P.3d at 72).
Clark has identified, and we have found, no case allowing the offensive use of a prior successful ineffective-assistance claim to preclusively establish the breach element in a subsequent criminal malpractice action. Clark does not even dispute this is the proper outcome when the criminal defendant is represented by a private attorney. Instead, he argues that a publicly-employed attorney sued under a tort claims act that substitutes the state for the public employee as the defendant in a malpractice action is different than the private attorney context because the state is the named defendant in both the PCR action and the malpractice action. Clark’s attempt to explain away the significantly different position the state holds in each of those cases is unpersuasive.
The dramatically different interests between the state in defending a conviction in a PCR proceeding and a defense attorney’s interests in defending against liability in a criminal malpractice action that support the Oregon and Alaska courts’ decisions exist even when the attorney is a state public defender employed by the state. Critically, the state acting as
The Restatement (Second) of Judgments explains, “A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.” Restatement (Second) of Judgments § 36(2), at 359 (Am. L. Inst. 1982). “The rule that a person appearing in litigation in one capacity is not, generally speaking, affected thereby in another legal capacity serves to safeguard the integrity of such representative functions.” Id. cmt. a. “With respect to issue preclusion, a party appearing in successive actions . . . is not precluded where the capacities in which he participated are different.” Id. at 360. The Restatement (Second) goes on to address this rule in the context of government agencies with distinct responsibilities, explaining,
If the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them, the earlier judgment should not be given preclusive effect in the second action.
This reasoning applies to the State’s involvement in the cases here. No one would seriously suggest that the State’s relationship with Clark, or his attorney, at the criminal trial stage would be different had he been represented by a private attorney instead of the public defender’s office. During the trial, those interests were clearly antagonistic, with the publicly-employed defense attorney working against conviction while the State worked for conviction. That relationship did not magically change when Clark sought relief from his conviction based on ineffective assistance of counsel. In the PCR action, the State continued in its prosecutorial role to represent the citizens of Iowa with the responsibility of upholding the state’s laws and, ultimately, seeing that justice is done. As the criminal defense attorney’s employer in the malpractice action, the State stepped into an entirely different capacity, one that has the responsibility of preserving the public fisc and defending its employee’s actions and reputation, as well as the reputation of its public defender’s office. While the unique nature of an ineffective-assistance claim necessarily puts the State as prosecutor in the position of defending the criminal defense attorney’s conduct, that is no less true when the attorney is privately retained. Yet, as in Stewart and Stevens, the State cannot be said to be in privity with that attorney, even if he happens to be a public defender.
The Johnson County Attorney’s office in this case was not expected to defend the PCR action by placing the risk to the public fisc from a malpractice suit and Robertson’s and the state public defender’s office’s reputational interests at the forefront of its strategy. Any such expectation would endanger the integrity of the Johnson County Attorney’s office and its prosecutorial obligations to the citizens of Iowa. The State’s ultimate responsibility is to see that justice is done, not to defend its conviction at all costs. When PCR relief is granted, the State often elects not to retry the defendant on the same charges, even though a second conviction would eliminate a possible malpractice claim against the defense attorney. For example, the State may conclude that if the defendant has already served substantial prison time, justice has been done and the additional expense of a lengthy retrial does not best serve the State’s prosecutorial interests. Forcing the State to nonetheless retry the defendant just to avoid issue preclusion on a potential malpractice claim is not only an unwise and impractical public policy, it also imposes incompatible obligations on the State.
When the State prosecutor “enters the courthouse in order to prosecute criminal conduct . . . , it should not be distracted from its purpose by the personal interests of [state] employees” who represented its adversary. Stewart, 239 P.3d at 1242 (quoting Doherty, 167 P.3d at 72). Yet, the district court’s ruling imposed just such a duty when it stated: “Any manner in which the State could prove that defense counsel had done his job to the appropriate professional level of competence should have been set forth and argued at the post-conviction relief trial.” Had Clark been represented by a private attorney, the State would not be expected to set forth every manner in which that attorney acted competently. Rather, it would have exercised its discretion in defending the ineffective-assistance claims under the strategy that best served the citizens of Iowa—a strategy that may or may not have included defending each of the attorney’s actions.
The Minnesota Supreme Court has also held that a finding of ineffective assistance of counsel in a habeas case does not preclude the attorney from arguing he was not negligent in the criminal defendant’s subsequent malpractice action. See Noske, 670 N.W.2d at 746 (reaching merits of argument despite procedural challenges). The court relied on the reasoning from a prior decision where it explained:
Review of the issue of ineffectiveness is not to pass judgment on the abilities of a defense lawyer. Rather, the overall concern is limited to whether our adversary system of criminal justice has functioned properly. The narrow issue is not whether defense counsel was effective in the assistance rendered but rather whether defendant received the effective assistance required to assure him a fair trial and the integrity of our adversary system of justice.
Id. (quoting White v. State, 248 N.W.2d 281, 285 (Minn. 1976) (per curiam)). Likewise, adjudication of ineffective-assistance claims under Iowa law can turn on considerations beyond whether defense counsel’s actions fell below an acceptable level of competence. See State v. Clay, 824 N.W.2d 488, 504 (Iowa 2012) (Mansfield, J., concurring) (“I think a fair assessment of our recent precedents is that they recognize a rather broad concept of what constitutes a failure to perform an essential duty for ineffective-assistance-of-counsel purposes.”); see also Jon M. Woodruff,
While the Minnesota court’s reasoning does not directly address the privity requirement of issue preclusion, it does shed light on whether an attorney defending against a malpractice claim had a full and fair opportunity to litigate his actions in the prior PCR proceeding, see Dettmann, 613 N.W.2d at 244 (privity requires the party to have had a full and fair opportunity to litigate the issue in the first proceeding), where ineffective-assistance findings do not always track directly from counsel’s actions. It also helps explain why a finding that a criminal defendant is entitled to relief from a conviction based on ineffective assistance of counsel does not a fortiori establish that counsel breached his duties for purposes of a malpractice action.
Like many other jurisdictions we require postconviction relief as a necessary prerequisite to a criminal legal malpractice claim, see Kraklio, 909 N.W.2d at 439; see also Stewart, 239 P.3d at 1240, but like Alaska, “we have never suggested that it takes the place of establishing the elements of negligence,” Stewart, 239 P.3d at 1240; see also White, 248 N.W.2d at 285 (holding that a finding of ineffective assistance of counsel does not necessarily “entail the success of a malpractice action against the defense attorney”); Bailey v. Tucker, 621 A.2d 108, 114–15, 115 n.14 (Pa. 1993) (requiring criminal defendant to obtain posttrial relief dependent on attorney error before bringing a criminal malpractice action and “emphasiz[ing] that a finding of ineffectiveness is not tantamount to a finding of culpable conduct”); cf. Hicks v. Nunnery, 643 N.W.2d 809, 830–31 (Wis. Ct. App. 2002) (holding evidence of attorney’s testimony admitting he provided ineffective assistance in PCR proceeding was admissible at subsequent malpractice trial without suggesting it would have preclusive effect). This is true whether or not defense counsel is employed by the State. There is simply no principled basis for treating malpractice claims differently based on the identity of defense counsel’s employer.
We conclude the State as defendant in this malpractice action was not the same party, or in privity with a party, in the PCR action. The State in its capacity as the criminal defense attorney’s employer lacked a full and fair opportunity to litigate whether the criminal defense attorney breached duties owed to Clark in the PCR action. Given this resolution, we need not address the State’s other challenges to Clark’s use of issue preclusion.
While we hold that Clark may not use his successful ineffective-assistance-of-counsel claims to preclusively establish the breach elements of his malpractice claims, we reiterate that our holding does not diminish Clark’s ability to rely on the same evidence he successfully used before. We merely hold that he cannot rely on the ineffective-assistance findings as a matter
IV. Conclusion.
The district court’s grant of partial summary judgment is reversed and the case is remanded for further proceedings.
REVERSED AND REMANDED.
Notes
Section 815.10(6) states,
An attorney appointed under this section is not liable to a person represented by the attorney for damages as a result of a conviction in a criminal case unless the court determines in a postconviction proceeding or on direct appeal that the person’s conviction resulted from ineffective assistance of counsel, and the ineffective assistance of counsel is the proximate cause of the damage.