108 Wash. App. 113 | Wash. Ct. App. | 2001
This case presents an issue of first impression: Whether a defendant whose counsel rendered ineffective assistance in a criminal proceeding may, after entering an Alford plea
In 1993, a jury convicted Robert Falkner of second degree murder for killing his wife, Barbara. Following his conviction, Falkner discharged his attorney, Michael Foshaug, hired his present counsel and moved for a new trial based on ineffective assistance of counsel. The trial court denied Falkner’s motion, but on appeal this court ruled that “there is a significant probability that Foshaug’s failure to investigate and prepare the defense case” prejudiced Falkner, and that, but for the errors, the result of the first trial might have been different.
In December 1998, the case went to trial for a second time. When the State’s first witness violated a pretrial ruling excluding ER 404(b) evidence, the trial court declared a mistrial. Falkner’s new counsel then filed a motion to dismiss the charges because of prosecutorial misconduct.
After he entered the Alford plea, Falkner renewed the malpractice lawsuit he had initiated against Foshaug in 1996.
[B]ecause of the public policy cited by the defendants and some of the other evidence in Washington law that would tend to lead to the fact that public policy would be the public policy of Washington, including the slayer statute and the other statutes that would indicate that a person convicted of a crime is not intended to benefit from the crime in any way, and also from the nature of the Alford plea, and the entire concept underlying attorney malpractice actions in general, namely, there has to be a showing of harm that was caused by whatever breach of care there was.
I do, however, find that the law in Washington would be that there is a requirement of showing, being able to show innocence or exoneration. Clearly, there is no showing of exoneration that has been made. And that the Alford plea, even though it reserves the statement that the defendant, the plaintiff in this case, was guilty, nevertheless, is based on the concept that Mr. Faulkner [sic] felt he would have been found guilty. So, for a whole variety of reasons, the Court will grant the motion and dismiss this action.
Falkner appeals. He agreed at oral argument with the trial court’s ruling that he would have to establish his innocence to prevail in a criminal malpractice action, but asserts that his Alford plea does not preclude him from making such a showing at trial.
A legal malpractice claim requires proof of an attorney-client relationship creating a duty of care, breach of that duty, damage, and proximate cause.
A brief overview of other jurisdictions’ treatment of criminal malpractice claims is instructive. First, many jurisdictions require that a defendant obtain postconviction relief before initiating a malpractice claim, reasoning that it is “inappropriate to treat victims of alleged negligence by defense counsel as having been ‘harmed,’ for the purpose of maintaining a legal malpractice action . . . unless they show that their counsel failed to meet the established standards in a way that would make postconviction relief appropriate.”
In addition to the postconviction relief requirement, many jurisdictions require proof that the criminal defendant/malpractice plaintiff is innocent of the underlying criminal charges as an additional element of the civil malpractice claim.
Falkner argues that because his Alford plea does not admit guilt of the underlying charges, he should be permitted to prove his innocence at trial, while Foshaug asserts
First, some background on the innocence requirement will be helpful. The cases from other jurisdictions “ ‘treat a defendant attorney’s negligence as not [being] the cause of the former client’s injury as a matter of law, unless the plaintiff former client proves that he did not commit the crime.’ ”
Relying either on collateral estoppel or public policy considerations, jurisdictions adopting the innocence requirement also hold that defendants who have voluntarily entered a standard guilty plea cannot later allege their innocence in a civil malpractice action.
While we agree that a knowing and voluntary guilty plea in a criminal trial precludes a defendant from alleging his innocence in a subsequent legal malpractice case, that does not answer the more difficult question whether entry of an Alford plea has the same effect. Citing In re Discipline of McLendon,
Safeco Insurance Co. of America v. McGrath
[I]t has been held that the doctrine of collateral estoppel is applicable where defendants in civil cases have been previously convicted of criminal charges after a trial, for indeed, they have had a “full and fair opportunity” to litigate the issues. . . .
The same cannot necessarily be said, however, where the criminal conviction is based on an Alford-type guilty plea. A criminal defendant must contend with powerful, coercive forces .... Under such coercive circumstances, the policies underlying application of the doctrine of collateral estoppel have not been met. . . . Therefore, application of the doctrine would work an injustice under these facts.[27 ]
While McGrath did not present the same issue as our case, its reasoning applies equally here to preclude the use of collateral estoppel as a basis for barring Falkner’s suit against Foshaug. Because we cannot say that an Alford plea in every instance in fact provides a full and fair opportunity to litigate the question of a defendant’s guilt,
But the trial court did not rely on collateral estoppel to bar Falkner’s claim. In observing that “a person convicted of a crime is not intended to benefit from the crime in any way,” the trial court indicated that it was relying on public policy principles to preclude Falkner’s suit. Foshaug cites this same concern — that no person shall profit from his own wrongdoing — in his brief. But the trial court and Foshaug ignore the significant fact that this concern, as well as all the other public policy arguments Foshaug presents, are served by imposing an actual innocence requirement. Requiring a defendant to prove by a preponderance of the evidence that he is innocent of the charges against him
Although not argued by the parties, we have considered whether reasons of judicial integrity, finality of judgments and respect for the judicial process are sufficient to bar Falkner’s malpractice claim. Together these considerations are referred to as judicial estoppel, a doctrine the Washington courts have discussed on occasion.
The facts in this case do not meet that requirement. Falkner maintained his innocence both when he entered his Alford plea and, earlier, when he instituted this malpractice action. Were he to prevail in the latter, that result would not create disrespect for the judicial system or “ ‘the perception that either the first or second court was misled.’ ”
We recognize that the Appellate Division of the New York Court of Appeals has rejected the position we take here. In Cumberland Pharmacy, Inc. v. Blum
We reverse the trial court and remand the case for further proceedings consistent with this opinion.
Webster and Becker, JJ., concur.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
State v. Falkner, No. 36692-1-1 (Wash. Ct. App. May 5, 1997).
By that time, the State had amassed sanctions in the amount of $3,000 for its repeated discovery violations. Falkner claims this was because the State was “concerned about the weakness of its case.”
An Alford plea allows a defendant to maintain innocence while admitting that the government probably has enough evidence to prove guilt beyond a reasonable doubt. See North Carolina v. Alford, 400 U.S. 25. The Washington counterpart to Alford is State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
It had been held in abeyance pending the outcome of the criminal proceedings.
Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992). There is no question that an attorney-client relationship and a breach existed here.
Criminal malpractice is an elliptical phrase meaning “legal malpractice in the course of defending a client accused of a crime.” Otto M. Kraus & Ronald E. Mallen, The Misguiding Hand of Counsel — Reflections on “Criminal Malpractice,” 21 UCLA L. Rev. 1191 n.2 (1974).
Wiley v. County of San Diego, 19 Cal. 4th 532, 966 P.2d 983, 985 n.2, 79 Cal.Rptr. 2d 672 (1998) (collecting cases).
Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 562 (1993). See also, e.g., Morgano v. Smith, 110 Nev. 1025, 1029, 879 P.2d 735, 737 (1994); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497 (Tex. 1995).
909 S.W.2d 494, 498 (Tex. 1995).
Because the issue is not before us, we express no opinion on whether postconviction relief on other grounds would satisfy this requirement. See, e.g., Wiley, 966 P.2d at 989-90, discussing the inappropriateness of permitting a malpractice claim where the conviction has been overturned based on “ ‘legal technicalities.’ ”
See, e.g., Wiley, 966 P.2d 983; Kramer v. Dirksen, 296 Ill. App. 3d 819, 695 N.E.2d 1288 (1998); Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783 (1991); Morgano, 879 P.2d 735; Carmel v. Lunney, 70 N.Y.2d 169, 511 N.E.2d 1126 (1987). Michigan and Ohio have refused to impose an innocence requirement. See Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 908 (1994); Krahn v. Kinney, 43 Ohio St. 3d 103, 538 N.E.2d 1058, 1061 (1989). These courts reason that a defense attorney’s negligence may be the legal cause of a client’s damages, notwithstanding the defendant’s actual commission of a crime. But the facts of these cases differ from ours in significant respects. In Krahn, the attorney failed to convey a plea offer, and in Gebhardt, an offer of immunity. Several commentators have also criticized the innocence requirement as unnecessary and unfair. See, e.g., Susan M. Treyz, Note, Criminal Malpractice: Privilege of the Innocent Plaintiff?, 59 Fordham L. Rev. 719 (1991).
Wiley, 966 P.2d at 987 (citing Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 113 (1993)).
Id. at 986 (quoting Glenn, 569 N.E.2d at 786).
Id. at 987.
We note that in this case the trial court appeared to require proof of innocence as a prerequisite to avoiding summary judgment. This would be an impossible standard to meet because, as a matter of both logic and procedure, a plaintiff can allege his innocence only in the complaint before the trial. The real issue is whether, considering the history of the case, he can create a material issue of fact about his innocence for the jury to decide at trial.
691 S.W.2d 498, 503 (Mo. Ct. App. 1985).
See generally Gregory G. Samo, Annotation, Legal Malpractice in Defense of Criminal Prosecution, 4 A.L.R.5th 273 (1992).
70 N.Y.2d 169, 511 N.E.2d 1126 (1987).
Id. at 1128.
Id. See also Brown v. Theos, 338 S.C. 305, 526 S.E.2d 232 (1999) (holding that a defendant who successfully overturned his original conviction but entered a plea of no contest at a second trial could not sue his original counsel for damage sustained as a result of the no contest plea because the proximate cause of his damages was his decision to enter the plea).
120 Wn.2d 761, 845 P.2d 1006 (1993).
Id. at 771 (quoting Florida Bar v. Cohen, 583 So. 2d 313, 314 (Fla. 1991)).
Id. at 770.
Id. at 771 (quoting Florida Bar, 583 So. 2d at 314). Respondents state in their brief that an “Alford plea of guilty is conclusive proof of guilt of the criminal offense charged,” misrepresenting the McLendon court’s holding as a holding under Washington, rather than Florida law.
42 Wn. App. 58, 62-63, 708 P.2d 657 (1985), review denied, 105 Wn.2d 1004 (1986).
Id. at 62-63 (citations and footnote omitted).
The elements of collateral estoppel are:
“(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of the doctrine must not work an injustice.”
Id. at 62 (quoting Beagles v. Seattle-First Nat’l Bank, 25 Wn. App. 925, 929, 610 P.2d 962 (1980)).
See Talarico v. Dunlap, 177 Ill. 2d 185, 685 N.E.2d 325, 331 (1997) (because plaintiff’s plea bargain would result in a significant reduction in the charges and sentence, he lacked an “incentive to litigate” the issue at the criminal trial).
We agree with the court in Wiley that the burden of proof at trial will be complex, requiring the jury to decide whether the plaintiff has proven by a preponderance of the evidence that, but for his attorney’s negligence, the jury would not have found him guilty beyond a reasonable doubt. Wiley, 966 P.2d at 990. But the potential difficulty in articulating the standard of proof is not a valid reason for dismissing Falkner’s claim, especially where a jury’s finding in his favor would not produce a result inconsistent with our decision overturning his conviction and his entry of an Alford plea.
Stevens, 851 P.2d at 565.
See, e.g., Markley v. Markley, 31 Wn.2d 605, 614-15, 198 P.2d 486 (1948); Mueller v. Garske, 1 Wn. App. 406, 409, 461 P.2d 886 (1969); Raymond v. Ingram, 47 Wn. App. 781, 785, 737 P.2d 314, review denied, 108 Wn.2d 1031 (1987).
532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001).
Id. at 750 (quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir.), cert. denied, 498 U.S. 812 (1990)).
Id. (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477, at 782 (1981)).
In Raymond, this court summarized our Supreme Court’s discussion of judicial estoppel:
“A number of limitations upon, or qualifications of, the rule against assuming inconsistent positions in judicial proceedings have been laid down. Thus, the following have been enumerated as essentials to the establishment of an estoppel under the rule that a position taken in an earlier action estops the one taking such position from assuming an inconsistent position in a later action: (1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be*125 clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; (6) it must appear unjust to one party to permit the other to change.”
Raymond, 47 Wn. App. at 785 (quoting Markley, 31 Wn.2d at 614-15) (emphasis omitted). In New Hampshire v. Maine, the Supreme Court listed several factors that “typically inform the decision whether to apply the doctrine in a particular case:” (1) clear inconsistency between the party’s earlier and later positions, (2) the party’s success in convincing the court to accept its position in the earlier litigations; and (3) an unfair detriment to the opposing party from allowing assertion of the inconsistent positions. 532 U.S. at 750.
Id. at 751.
Id.; Raymond, 47 Wn. App. at 785.
New Hampshire, 532 U.S. at 750 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). We also note that allowing the suit to proceed would not prejudice Foshaug because he was not a party to the Alford plea and has not been misled or changed positions to his detriment in reliance on it. For the same reasons, equitable estoppel is also inapplicable here. Henderson Homes, Inc. v. City of Bothell, 124 Wn.2d 240, 248-49, 877 P.2d 176 (1994).
415 N.Y.S.2d 898, 69 A.D.2d 903 (1979).
472 N.Y.S.2d 97, 98 A.D.2d 495 (1984).
People v. Serrano, 15 N.Y.2d 304, 206 N.E.2d 330 (1965).
Blum, 415 N.Y.S.2d at 900.
Arzillo, 472 N.Y.S.2d at 105.