In this lеgal malpractice action, plaintiff appeals as of right from an order granting summary disposition in favor of defendant attorney pursuant to MCR 2.116(C)(7). We affirm.
Plaintiff was charged in January, 1983, with first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), for penetrating with his finger a person under thirteen years of age. Defendant was appointed to serve as defense counsel. Following a bench trial, plaintiff was found guilty as charged.
Plaintiff released defendant as his attorney and *714 moved for a new trial, claiming ineffective assistance of counsel and the existence of new evidence. At the conclusion of an evidentiary hearing at which both plaintiff and defendant testified, the trial court granted the motion on the ground that defense counsel should have introduced a doctor’s report indicating that there was no medical evidence that the victim had bеen sexually penetrated. On a subsequent prosecutorial motion, the trial court vacated the order granting a new trial and entered a conviction of second-degree criminal sexual conduct. Plaintiff was sentenced to six months in jail and four and one-half years probation.
Plaintiff appealed to this Court
(People v Knoblauch,
unpublished opinion per curiam, decided December 27, 1984 [Docket No. 73750]), arguing, inter alia, ineffective assistanсe of counsel under the bifurcated test of
People v Garcia,
*715 On April 18, 1985, plaintiff filed the instant legal malpractice action asserting essentially the same grounds as had been raised in his ineffective assistance of counsel claim. Defendant answered in pro per, denying the allegations. Approximately one month later, his retained counsel filed an amended answer asserting collateral estoppel as an affirmative defense. Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), based on the collateral estoppel defense. The trial court granted the motion. The court initially found that defendant’s failure to plead collateral estoppel as an affirmative defense in his first responsive pleading did not make the dеfense untimely. Addressing the merits of the motion, the court then concluded that the standards for determining ineffective assistance of counsel and malpractice were essentially the same and that, because the matter in dispute had been previously decided in the criminal matter and again on appeal, collateral estoppel barred relitigation of the issue.
Plaintiff raises both procedural and substantive issues on appeal. Procedurally, he contends that the trial court erred in deciding the merits of defendant’s motion, since the affirmative defense of collateral estoppel was not raised in defendant’s first responsive pleading. We disagree. MCR 2.116(D)(2) requires that the grounds for a motion under MCR 2.116(C)(7) asserting that a plaintiffs claim is barred must "be raised not later than a party’s responsive pleading.” "[T]here is no requirement that these grounds be raised in the party’s 'first’ responsive pleading. Thus, they are subject to the court’s authority to grant permission to amend the [answer] to add the defense under MCR 2.118.” 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 300. This result is consistent with cases examining GCR 1963, 116.1, the
*716
predecessor to MCR 2.116(D)(2). See
Harris v Lapeer Public School System,
Substantively, plaintiff contends that the trial court erred in finding him collaterally estopped from asserting a claim of legal malpractice. As noted by the trial court, the question whether a criminal defendant who has raised and obtained a ruling on the issue of ineffective assistance of counsel is collaterally estopped from subsequently asserting a claim of legal malpractice appears to be one of first impression in this state.
Collateral estoppel bars the relitigation of issues previously decided when such issues are raised in a subsequent suit by the same parties based upon a different cause of action.
Topps-Toeller, Inc, v City of Lansing,
In this case, the trial court concluded that plaintiff’s previous allegation of ineffective assistance of counsel raised "essentially the very same issues that have been raised” in the instant legal malpractice case. Noting that plaintiff had an opportunity to assert the same issues and have them reviewed under the same standards as apply in a malpractice claim, the court found that the "identity of issues” requirement for application of col
*717
lateral estoppel, see
Local 98 v Flamegas Detroit Corp,
People v Garcia,
When I use the words "professional negligence” or "malpractice” with respect to the defendant’s conduct, I mean the failure to do something which [an attorney] of ordinary learning, judgment or skill in this community would do, or the doing of something which [an attorney] of ordinary learning, judgment or skill would not do, under the same or similar circumstances you find to exist in this case.
It is for you to decide, based upon the evidence, what the ordinary [attorney] of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances.
*718 Plaintiff concedes that the sji is patterned after Garcia, but maintains that because the test for ineffective assistance оf counsel contains the extra requirement not present in a legal malpractice case—that counsel’s mistake was that but for which the defendant would have had a reasonable chance for acquittal—the test for civil malpractice is a less demanding one for the client to satisfy. The argument fails for two reasons.
First, in legal malpractice cases such as the instant one, whеre the client’s injury is not the dollar amount of a judgment entered against him in the underlying case but rather the fact that he sustained an adverse judgment, the client must also show that but for the act or omission complained of he would have been successful in the underlying case. See generally
Basic Food Industries, Inc v Grant,
Second, contrary to plaintiffs reading,
Garcia’s
two-part test for ineffective assistance of counsel is not cumulative but disjunctive.
People v Hunter,
Plaintiff discerns no other distinction between
*719
the standards applied to claims of ineffective assistance of counsel and legal malpractice, nor can we. We are satisfied that the concept behind ineffective assistance of counsel is thе right to reasonably competent representation, and that "[t]he concept of reasonable competence is also the standard 'traditionally and universally employed as the measure of a lawyer’s civil liability . . .
McCord
v
Bailey,
204 US App DC 334, 337; 636 F2d 606 (1980), cert den
The second requirement for application of the doctrine of collateral estoppel is the "identity of parties” in both cases. Local 98, supra, p 302. The circuit court ruled that "even though the defendant here, [attorney] William Kenyon, was not a party in interest by the time of the appeal of the [underlying criminal] case, . . . the issues in dispute were sufficiently identical that the commonality of the parties is not an inadmissible [sic] bar . . . .” This ruling was predicated upon the court’s view "that even though the identity of the individuals was not the same in [the] criminal case as it is here, . . . the essential question is whether or not the criminal defendant, here the civil plaintiff, had an opportunity to assert the same grounds, the same grievances, and to have them weighed by an impartial body such as the Court of Appeals in this particular instance.”
In
Howell
v
Vito’s Trucking & Excavation Co,
Clearly, in this case, defendant attorney was not a party in the underlying criminal case. Nor can he reasonably be considered a privy, defined as "one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.”
Howell, supra,
p 43, quoting
Bernhard v Bank of America National Trust & Savings Ass’n,
19 Cal 2d 807;
Defendant offers various reasons why this Court should allow his defensive use of collateral estop-pel despite the holding of
Howell.
Clearly, the trial
*721
court in this case was of the opinion that the identity of issues should override the fact that the parties were not the same as the parties in the underlying case. In these days of congested dockets, we too find little satisfaction in strict adherence to the mutuality requirement, where, as here, the issue presented has been decided and appealed and the plaintiff has had a full and fair opportunity to litigate the question in his prior case. This collective dissatisfaction is compounded by the fact that the legal underpinnings of
Howell
have been largely eroded in the last dеcade. The mutuality requirement set forth in the Restatement (First) and cited in
Howell
has been dropped in Restatement Judgments (Second), §§ 27-29, pp 119-123. IB Moore, Federal Practice, also relied upon by the
Howell
Court, now states that the states adhering to the mutuality requirement "constitute a small minority.” Paragraph 0.441[3.—2], p 735. At least two of the states cited in
Howell
for their adherence to the rule have abrogated it in certain situations. See
Oates v Safeco Ins Co of America,
Howell arose in a civil setting, where a claim alleging the defendant’s negligence had been previously and successfully litigated in a civil suit, and the plaintiff sought to avoid relitigating the issue in a sеcond civil action. It did not deal with defensive use of collateral estoppel in a criminal to *722 civil context, the situation in the present case. Similarly, the Restatement Judgments (First) did not consider the application of collateral estoppel in a criminal to civil context. In the Restatement Judgments (Second), however, the drafters added § 85, Effect of Criminal Judgment in Subsequent Civil Action. Section 85(2)(а) provides:
With respect to issues determined in a criminal prosecution:
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(2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action:
(a) Against the defendant in the criminal prosecution as stated in § 29. [Restatement Judgments (2d), § 85(2)(a), p 294.]
The rationale for this rule appears in comment "e” to the section:
e. Judgment for prosecution: preclusion in favor of third party. ... At аn earlier period in the development of res judicata doctrine, the "mutuality” requirement was an obstacle to applying issue preclusion in favor of such a third party. That is, since the third party would not have been bound in his civil action if the prosecution had resulted in an acquittal, under the mutuality rule it would follow that the third party could not take advantage of the issue determined in a conviction. However, long before the mutuality rule was repudiated in civil cases, well reasoned decisions had extended the rule of preclusion to operate in favor of third persons where the first action is criminal and the second is civil....
. . . The clearest situation is where the person who was convicted of an offense brings an action against the third party to assert a claim that rests on factual premises inconsistent with those established in the criminal prosecution. [Restatement *723 Judgments (2d), § 85, comment (e), pp 298-299. Emphasis changed.]
Defendant cites several cases in support of comment "e,” including Lamore v Laughlin, 82 US App DC 3; 159 F2d 463 (1947), decided twenty-four years before the mutuality requirement was abandoned by the Supreme Court in Blonder-Tongue, supra. In Lamore, the plaintiff sued his criminal appellate attorney, alleging that he had suppressed evidence that Lamore had been ineffectively represented by his trial counsel. Because the adequacy of his trial attorney’s representation had been previously litigated in Lamore’s habeas corpus action, the suit against the appellate attorney was dismissed. Significantly, the defendant appellate attorney was not involved in either the underlying criminal case or the habeas action.
Similarly, in
People ex rel Snead v Kirkland,
Hibbett v Cincinnati,
4 Ohio App 3d 128;
Although no Michigan cases are directly on point, there is evidence that Michigan courts have similarly repudiated the mutuality requirement in the criminal to civil context. In
Imperial Kosher Catering, Inc v The Travelers Indemnity Co,
The
Howell
Court articulated three reasons for its decision to reject nonmutual offensive estoppel in a civil to civil context: (1) in instances of several plaintiffs bringing successive actions against a single defendant, abandonment of the mutuality requirement would lead to "lopsided justice” in favor of the later plaintiffs, quoting
Nevarov v Caldwell,
161 Cal App 2d 762;
[PJublic policy dictates that a person convicted of a crime who has failed in his attack upon his conviction both directly and collaterally should not be permitted to recover against his attorney in a civil malpractice action for damages allegedly arising out of the attorney’s handling of his defense. It would undermine the effective administration of the judicial system to ignore completely a prior decision of a court of competent jurisdiction in this state on the same issue which plaintiff seeks to relitigate in a subsequent action.
Accordingly, we hold that, where a full and fair determination has beеn made in a previous criminal action that the client received the effective assistance of counsel, the defendant-attorney in a subsequent civil malpractice action brought by the same client may defensively assert collateral es-toppel as a bar.
In this case, the adequacy of defendant’s representation was determined at plaintiffs motion for new trial in the criminal action. Plaintiff had a full and fair opportunity to present his case. The court ultimately refused to grant a new trial on grounds of ineffective assistance of counsel after hearing testimony and argument. On appeal, the parties fully briefed the issue, and it received thorough treatment in this Court. Under these circumstances, plaintiff was collaterally estopped from again raising the issue in a legal malpractice action.
Affirmed.