Legal malpractice in the criminal context: Is postconviction relief required?

One of the emerging areas of legal malpractice claims is the action by the criminal defendant against the attorney that represented that defendant on a criminal case. Oftentimes the criminal defendant files a motion for postconviction relief alleging the ineffective assistance of counsel and seeking a new trial, but that same defendant also files a civil suit against the attorney for damages for that attorney's alleged professional negligence. This article will attempt to explain how the courts in Florida and other states have treated this issue and, specifically, the pleading barrier that has been added to make these suits especially difficult to maintain.

An action for legal malpractice in Florida generally requires "(1) the employment of the attorney; (2) the attorney's neglect of a reasonable duty; and (3) that the attorney's negligence was the proximate cause of the loss to the client." Rowe v. Schreiber, 725 So. 2d at 1249 (Fla. 4th DCA 1999). Courts have consistently been presented with motions to dismiss based on the defense that the statute of limitations, which is two years in Florida for legal malpractice,(1) bars the suit. The Fourth District Court of Appeal has held that a precondition to a legal malpractice action is the setting aside of the criminal defendant's conviction on appeal or in a postconviction proceeding. See Rowe, 725 So. 2d at 1249. The court in Rowe was persuaded by decisions from Alaska,(2) Nevada,(3) New York,(4) Oregon,(5) and Texas.(6) The court in Rowe chose to join the majority of states in imposing this additional element for claims based on alleged malpractice in the context of a criminal case. Indeed, even prior to the decision in Rowe, the U.S. District Court for the Middle District of Florida, Orlando Division, held that in applying Florida law, when criminal defendants plead guilty to a crime, as malpractice plaintiffs, they must prove their innocence in order to maintain a cause of action against their attorney. See Orr v. Black & Furci, P.A., 876 F. Supp. 1270 (M.D. Fla. 1995). In essence, the court found that the proximate cause of the defendant's damages was the defendant's guilt and his guilt alone. See Orr, 876 F. Supp. at 1267, citing Weiner v. Mitchell, Silberberg & Knupp, 114 Cal. App. 39, 170 Cal. Rptr. 533, 538 (1980). The court in Rowe acknowledged that several states have taken a different view and have decided that, as a prerequisite for maintenance of a cause of action, the malpractice plaintiff must pursue a civil suit and postconviction proceeding simultaneously. See Rowe, 725 So. 2d at 298; see also Silvers v. Brodeur, 682 N.E.2d 811 (Ind. Ct. App. 1997) (adopting discovery rule to bar claims filed more than two years after discovery of malpractice).

One of the key policy reasons Florida courts have cited in barring a defendant from bringing a malpractice claim is that it would be illogical and unreasonable to allow the criminal defendant the opportunity to collect from his counsel damages in a civil suit for ineffective representation when that defendant has failed in attacking his conviction on grounds of ineffective assistance of counsel. See Zeidwig v. Ward, 548 So. 2d 209 (Fla. 1989). Rowe also recognized conflict with an earlier decision of the First District Court of Appeal which did not require the finding of postconviction relief for ineffective assistance of counsel. See Martin v. Pafford, 583 So. 2d 736, 738 (Fla. 1st DCA 1991). The Fifth District Court of Appeal followed its own decision in Steele v. Kehoe, 724 So. 2d 1192 (Fla. 5th DCA 1998), when it affirmed a Summary judgment against a malpractice plaintiff because he had failed to obtain exoneration in the criminal court. See Mongelli v. Niles, 719 So. 2d 341 (Fla. 5th DCA 1998).

Steele v. Kehoe, 724 So. 2d at 1192, although it addressed whether the defendant should be allowed a delayed hearing on his counsel's failure to file a Rule 3.850 motion in a timely manner, is instructive. The court in Steele recognized that in the usual case, exoneration is a prerequisite to a legal malpractice action arising from a criminal prosecution. Id. at 1193. The court favorably cites the main policy reasons for requiring such a rule.

First, criminal procedure provides a remedy for ineffective assistance of counsel. Judicial economy will be best served if we permit the criminal court to determine the issue of ineffective assistance of counsel. If the court should determine that the attorney's representation, even if subpar, did not affect the result of the criminal trial then a subsequent malpractice action should not lie. Second, public policy should recognize that unless a defendant is exonerated, the proximate cause of the defendant's conviction is his or her commission of a crime and not legal malpractice. Third, and most important, unless exoneration is accomplished, a legal malpractice action would be an inadequate remedy.

See id.

The court in Steele certified the question of "whether it was appropriate to order a belated hearing in order to determine whether the attorney was in fact retained to file a post-conviction motion and, if so, to determine the validity of the issues that defendant asserts should have been raised in such motion?" See id. at 1195. Review of Steele was granted by the Supreme Court of Florida. See Steele v. Kehoe, 722 So. 2d 194 (Fla. 1998) (Table).

On May 27, 1999, the Supreme Court of Florida decided Steele v. Kehoe, No. 92-950 (Fla. May 27, 1999). The Steele court adopted the majority approach and held that a convicted defendant must obtain appellate or postconviction relief as a precondition to maintaining a legal malpractice action. Id. Further, the court held that the statute of limitations has not commenced until the defendant has obtained final appellate or postconviction relief. Id. In deciding Steele, the court disapproved of Martin v. Pafford, 583 So. 2d 736 (Fla. 1st DCA 1991).

One decision not cited by the court in Rowe was the California Supreme Court's decision in Wiley v. County of San Diego, 966 P.2d 983 (Cal. 1998). The court held that a malpractice plaintiff in the context of a criminal action is required to show, as a necessary element of the plaintiff's cause of action, actual innocence. See Wiley, 966 P.2d at 990. The court placed great weight on the fact that in the criminal malpractice context, a defendant's own criminal act remains the ultimate source of his predicament, irrespective of counsel's subsequent negligence. Id. at 988. The court placed special emphasis on the differences between regular tort liability for real-practice and malpractice in the context of a criminal case and the constitutional protections available to the criminal defendant. See id. at 989-990.

The Supreme Court of Pennsylvania in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (Pa. 1993), in its decision adopting the exoneration standard, pointed to some additional policy reasons not cited in the Florida decisions of Rowe and Steele. The court stated that the threat of malpractice actions against criminal defense attorneys could lead to a diminution of defense counsels' willingness to exercise independent legal judgment, lessen the use of plea bargains, and, finally, provide a disincentive to practitioners in the field of criminal defense to continue in the field. See Bailey, 621 A. 2d at 114.

The Supreme Court of Oregon in Stevens v. Bispham, 316 Or. 221,851 P. 2d 556 (Or. 1993), in adopting the exoneration requirement, pointed out that many prisoner complaints about counsel allege the failure to get "a better deal." See Stevens, 851 P.2d at 561. The court, with good reason, argues that it would be inappropriate, absent postconviction relief, to "treat a convicted offender as having been caused `harm' in a legally cognizable way by any disposition of that person's case that was legally permissible." Id. at 561. Other courts that have adopted the actual innocence standard have been the Supreme Courts of New Hampshire,(7) Texas,(8) Wisconsin,(9) and Idaho.(10)

Probably the most olden cited decision to the contrary requiring a plaintiff in a criminal malpractice case to obtain successful postconviction relief would be the Michigan Supreme Court's decision in Gebhardt v. O'Rourke, 510 N.W. 2d 900 (Mich. 1994). The Michigan court rejected the "no relief-no harm rule" because the court considered it a legal fiction with serious analytical flaws. See Gebhardt, 510 N.W. 2d at 906. The Michigan court was most persuaded by the potential subversion of the statute of limitations when a criminal defendant is allowed to first obtain postconviction relief before starting the clock on the limitation period. See id. at 907. The Michigan court adopted a "two track" approach which requires the criminal defendant to pursue his malpractice claim simultaneously with any postconviction matter. Id. at 907. The court viewed this "two track" approach as the best balance between competing concerns of fairness to criminal defendants and allowing the attorney a fair opportunity to defend. The Ohio Supreme Court in Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989), did not require the reversal of the criminal defendant's conviction in order to state a claim for legal malpractice arising from representation in a criminal proceeding. Id. at 1061. However, the court in Krahn would also allow the doctrine of collateral estoppel to preclude further litigation of issues which were litigated in a prior postconviction proceeding. Id. at 1062. The Supreme Court of Nebraska adopted the Gebhardt analysis in Seevers v. Potter, 537 N.W. 2d 505 (Neb. 1995), primarily because the court relied upon the Nebraska limitations statute which begins running upon the occurrence of the professional negligence. See Seevers, 537 N.W.2d at 511. Finally, the Court of Appeals for New Mexico followed Michigan's "two track" approach in Duncan v. Campbell, 936 P.2d 863 (N.M. 1997).

The U. S. Court of Appeals for the Seventh Circuit in Levine v. Kling, 123 F. 3d 580 (7th Cir. 1997), in an opinion by Chief Judge Posner, ruled that if the Supreme Court of Illinois was confronted with the issue, it would side with the jurisdictions which require the defendant to prove he was innocent of the crime with which he was charged. See id. at 582. The court stated, in dicta, that "[t]he guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result ... and the law provides no relief if the `right' is denied him." See id. at 582.

Finally, several courts have adopted an approach that might be labeled as a middle ground, based on the ordinary negligence standard. The Supreme Court of Alabama, although not adopting the postconviction relief standard, requires that a criminal malpractice plaintiff prove that "in the absence of the alleged negligence the outcome of the case would have been different." See Herring v. Parkmann, 631 So. 2d 996,1001 (Ala. 1994), citing Hall v. Thomas, 456 So. 2d 67, 68 (Ala. 1984).

An interesting approach was adopted by the Supreme Court of North Dakota in Klem v. Greenwood, 450 N.W. 2d 738 (N.D. 1990). There, the plaintiff's criminal conviction was ultimately reversed on appeal after the trial court erred in closing the trial to the public during a child victim's testimony. See id. at 739. The court found that even though the objection made by the attorney to the closure had preserved the issue for appeal, the court had not necessarily found that the attorney had met the standard of care required for a prudent attorney. See id. at 744.

The Maryland Supreme Court, although not specifically deciding the issue, in dicta indicated that a criminal plaintiff would be entitled to recover damages for conduct which was the product of ineffective representation that was short of a wrongful conviction or sentence. See Fischer v. Longest, 637 A.2d 517, 522, 99 Md. App. 368 (Md. Ct. Spec. App. 1994).

The District of Columbia Court of Appeals' decision in Smith v. Public Defender, 686 A.2d 210 (D.C. 1996), held that the constitutional standard under Strickland v. Washington, 466 U.S. 668 (1984), is a minimum standard. The court reasoned that its earlier decision in Brown v. Jonz, 572 A.2d 455 (D.C. 1990), was limited to the proposition that legal malpractice claims are not automatically barred whenever a plaintiff has unsuccessfully pursued a claim for ineffective assistance of counsel. See Smith, 686 A.2d at 212. The court reasoned that because the legal standards of care are different for the two types of cases, its holding was a rejection of the majority of the courts that have held the two standards are essentially equivalent. See id. at 212.

Both the Supreme Court of Delaware and the U.S. District Court, District of Columbia, have held that the standard for judging malpractice claims in the criminal context requires the plaintiff to show that the result of his criminal trial would have been different had his attorney not committed the alleged misconduct. See Sanders v. Malik, 711 A.2d 32, 34 (Del. 1998); Williams v. Callaghan, 93;5 F. Supp. 46 (D.C. 1996). In addition, the Supreme Court of Tennessee has also adopted the usual malpractice standard when applied to criminal malpractice claims. See Sanjines v. Ortwein & Associates, P.C., 984 S.W. 2d 907, 910 (Tenn. 1998).

It appears theft a majority of the courts which have considered the issue of an action for legal malpractice in a criminal proceeding have concluded that, at the very least, the criminal defendant must somehow be exonerated on appeal or by postconviction proceedings before a suit may be maintained. Some courts have even gone so far as to require the criminal defendant to establish actual innocence of the crime or any lesser included offenses therein. Since the Supreme Court of Florida decided Steele, the question that was open in this state has been answered. The Supreme Court probably sided with the majority of the states that have adopted the postconviction relief approach in order to preserve the uniformity of the law and to promote the orderly administration of justice.

(1) Fla. Stat. [sections] 95.11(4)(a) (1999).

(2) Shaw v. State Dep't of Admin., 816 P. 2d 1358 (Alaska 1991).

(3) Morgano v. Smith, 879 P. 2d 735,737 (Nev. 1994).

(4) Carmel v. Lunney, 70 N.Y. 2d 169 (1987).

(5) Stevens v. Bispham, 851 P. 2d 556, 560 (Or. 1993).

(6) Peeler v. Hughes & Luce, 909 S.W. 2d 494 (Tex. 1995).

(7) Mahoney v. Shaheen, Capiello, Stein & Gordon, P.A., No. 96-640 (N.H. April 16, 1999) (Westlaw).

(8) Peeler v. Hughes & Luce, 909 S.W. 2d 494 (Tex. 1995).

(9) Reimann v. Ginsberg, No. 98-1478 (Wis. Feb. 4, 1999) (Westlaw).

(10) Lamb v. Manweiler, 923 P. 2d 976 (Idaho 1996).

Robert J. Hoffman is a court counsel for the 12th Judicial Circuit, assigned to the criminal and probate divisions, where a majority of the cases he works on involve claims of ineffective assistance of counsel and illegal sentences. He graduated from New York Law School in 1989 and was employed in New York City as a public defender Mr. Hoffman is admitted to the New York and Florida bars, the U.S. District Court, Middle District of Florida, and the U.S. Court of Appeals, 11th Circuit.

This column is submitted on behalf of the Criminal Law Section, George E. Tragos, chair, and Randy E. Merrill, editor