SUPREME COURT OF ARIZONA
En Banc
JAMES R. GLAZE, JR., a married ) Arizona Supreme Court
man, ) No. CV-02-0375-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CV 2001-0196
)
ERIC A. LARSEN, ) Pima County Superior
) Court
Defendant/Appellee. ) No. C-20006235
)
__________________________________) O P I N I O N
Appeal from the Superior Court of Pima County
The Honorable Jane L. Eikleberry, Judge
REVERSED AND REMANDED
Opinion of the Court of Appeals, Division Two
203 Ariz. 399, 55 P.3d 93
VACATED
THE KERLEY FIRM, P.C. Sierra Vista
By: James K. Kerley
Attorney for Appellant
CHANDLER, TULLAR, UDALL & REDHAIR, LLP Tucson
By: Peter Akmajian
Attorney for Appellee
ENGELMAN BERGER, P.C. Phoenix
By: William H. Anger
Attorney for Amicus Curiae
Arizona Association of Defense Counsel
H U R W I T Z, Justice
¶1 This case requires us to decide when a cause of action
accrues for legal malpractice occurring in the course of
criminal litigation. We granted review because the issue is one
of first impression in Arizona and is of statewide importance.
We have jurisdiction pursuant to Article 6, Section 5(3) of the
Arizona Constitution, Arizona Rule of Civil Appellate Procedure
23, and Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).
I.
¶2 James R. Glaze was convicted in superior court of one
count of sexual abuse and was sentenced to a one-year term of
probation. Eric A. Larsen represented Glaze in the trial
proceedings. Larsen also represented Glaze on his direct
appeal, in which the court of appeals affirmed the conviction.
State v. Glaze, 2 CA-CR 96-0145 (Ariz. App. Jan. 14, 1997) (mem.
decision).
¶3 Glaze, no longer represented by Larsen, then filed a
petition in the superior court under Arizona Rule of Criminal
Procedure 32 for post-conviction relief. The Rule 32 petition
alleged that Larsen had provided ineffective assistance of
counsel by failing to request a jury instruction regarding “lack
of sexual motivation.” The superior court dismissed the
petition. The court of appeals granted Glaze’s petition for
review, but initially denied relief. State v. Glaze, 2 CA-CR
2
97-0400-PR (Ariz. App. June 23, 1998) (mem. decision). On
September 30, 1998, however, the court of appeals granted a
motion for reconsideration and held that Glaze had stated a
“colorable claim of ineffective assistance of counsel.” The
case was remanded to superior court for an evidentiary hearing.
¶4 On remand, the superior court found that Larsen had
been ineffective in failing to request the jury instruction and
granted Glaze a new trial. Glaze then filed a motion to dismiss
the charges with prejudice. The superior court granted the
motion to dismiss on July 6, 1999.
¶5 On December 14, 2000, Glaze filed suit against Larsen,
alleging that Larsen’s negligence had caused the criminal
conviction. The superior court granted Larsen’s motion to
dismiss, holding that Glaze’s claim was barred by the two-year
statute of limitations in A.R.S. § 12-542 (2003), which provides
that negligence actions “shall be commenced and prosecuted
within two years after the cause of action accrues.” The trial
court found that the cause of action had accrued on September
30, 1998, the date the court of appeals held that Glaze had a
colorable claim for ineffective assistance of counsel.
¶6 The court of appeals reversed. Glaze v. Larsen, 203
Ariz. 399, 55 P.3d 93 (App. 2003) (Florez, J.). The opinion
below relied heavily on Amfac Distribution Corp. v. Miller, 138
Ariz. 155, 673 P.2d 795 (App.) (“Amfac I”), approved as
3
supplemented, 138 Ariz. 152, 673 P.2d 792 (1983) (“Amfac II”),
which held that a cause of action for legal malpractice in a
civil case did not accrue until the underlying civil
proceedings, including all appeals, had concluded. The court of
appeals determined in this case that Glaze’s malpractice claim
similarly did not accrue until the criminal proceedings against
him were concluded by the order of dismissal entered by the
superior court. Because that order was entered on July 6, 1999,
the court of appeals held that Glaze’s malpractice suit, filed
on December 14, 2000, was commenced within two years after the
cause of action accrued. Glaze, 203 Ariz. at 404 ¶ 16, 55 P.3d
at 98.
¶7 Judge Pelander concurred in the result, but only
because he felt constrained to do so by Amfac I and Amfac II.
Id. at 404 ¶ 18, 55 P.3d at 98 (Pelander, J., concurring). Left
to his own devices, Judge Pelander would have adopted the “two-
track” approach of Coscia v. McKenna & Cuneo, L.L.P., 25 P.3d
670 (Cal. 2001). Glaze, 203 Ariz. at 405, 406-07 ¶¶ 24, 27-28,
55 P.3d at 99, 100-01. Coscia held that a cause of action for
legal malpractice accrues as soon as the plaintiff has actual or
constructive notice of his attorney’s wrongful conduct. 25 P.3d
at 680. If, however, the malpractice plaintiff’s criminal
proceedings are still ongoing at the time the plaintiff files
his malpractice suit, the trial court may stay the malpractice
4
action while the plaintiff pursues his post-conviction remedies.
Id.
¶8 Judge Brammer dissented, concluding that Glaze’s cause
of action had accrued no later than April 23, 1997, the date on
which he filed his Rule 32 petition alleging ineffective
assistance of counsel. Glaze, 203 Ariz. at 408 ¶ 36, 55 P.3d at
102 (Brammer, J., dissenting). Although he assumed that the
Amfac rule requiring termination of the underlying proceedings
applied in the context of a malpractice action arising out of a
criminal prosecution, id. at 407 ¶ 31, 55 P.3d at 101, Judge
Brammer believed that Glaze’s criminal case had concluded at the
termination of his direct appeal, id. at 407-08 ¶¶ 33-34, 55
P.3d at 101-02.
II.
¶9 The parties agree that Glaze’s suit is governed by the
two-year statute of limitations in A.R.S. § 12-542. See Kiley
v. Jennings, Strouss & Salmon, 187 Ariz. 136, 139, 927 P.2d 796,
799 (App. 1996). Section 12-542 provides that certain actions
“shall be commenced and prosecuted within two years after the
cause of action accrues.” (Emphasis added.) Other Arizona
statutes of limitation have identical language. See, e.g.,
A.R.S. §§ 12-541 to –544, -546, -548 (2003) (requiring that
various actions be commenced within a specified time “after the
cause of action accrues”). But these statutes of limitation do
5
not purport to define when a cause of action “accrues.” Rather,
under § 12-542 and the other general limitations statutes, that
analysis has been left to judicial decision.
¶10 The determination of when a cause of action accrues
requires an analysis of the elements of the claim presented.
For example, it has long been settled that an essential element
of a claim for malicious prosecution is that the prosecution
terminate in favor of the plaintiff. See Overson v. Lynch, 83
Ariz. 158, 161, 317 P.2d 948, 949 (1957). Therefore, for
purposes of the one-year statute of limitations governing
malicious prosecution claims, A.R.S. § 12-541, this cause of
action does not accrue until the underlying prosecution has
terminated in favor of the plaintiff. See Owen v. Shores, 24
Ariz. App. 250, 251, 537 P.2d 978, 979 (1975).
¶11 No Arizona case addresses when a cause of action
accrues when the allegation is that a lawyer’s malpractice has
caused the plaintiff’s criminal conviction. Our cases, however,
have repeatedly addressed when a cause for legal malpractice in
the civil context accrues. We first turn to an analysis of
those cases.
A.
¶12 As with all negligence claims, a plaintiff asserting
legal malpractice must prove the existence of a duty, breach of
duty, that the defendant’s negligence was the actual and
6
proximate cause of injury, and the “nature and extent” of
damages. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300,
303 (App. 1986). A necessary part of the legal malpractice
plaintiff’s burden of proof of proximate cause is to establish
that “but for the attorney's negligence, he would have been
successful in the prosecution or defense of the original suit.”
Id.
¶13 Given these elements of the tort claim, a legal
malpractice claim accrues when “(1) the plaintiff knows or
reasonably should know of the attorney’s negligent conduct; and
(2) the plaintiff’s damages are ascertainable, and not
speculative or contingent.” Kiley, 187 Ariz. at 139, 927 P.2d
at 799. Because an essential element of the claim is that the
plaintiff was injured by the attorney’s malpractice,
“[n]egligence alone is not actionable; actual injury or damages
must be sustained before a cause of action in negligence is
generated.” Amfac II, 138 Ariz. at 153, 673 P.2d at 793.
¶14 The Amfac decisions applied these general principles
to a claim that an attorney’s negligence in failing to name a
proper plaintiff resulted in the dismissal of a lawsuit. See
Amfac I, 138 Ariz. at 155, 673 P.2d at 795. The plaintiff filed
suit more than two years after discovering the attorney’s
negligence, but less than two years after the conclusion of the
appeal in the underlying civil action. Id. at 156, 673 P.2d at
7
796. Thus, the issue was “when a cause of action accrues for
legal malpractice which occurs during the course of litigation.”
Amfac II, 138 Ariz. at 153, 673 P.2d at 793. We held that the
cause of action did not accrue “until the appellate process is
completed or is waived by a failure to appeal.” Id. at 154, 673
P.2d at 794.
¶15 This holding was directly tied to the basic elements
of the legal malpractice tort. The defendant in Amfac asserted
that the plaintiff’s cause of action had accrued when the
plaintiff knew or should have known of the defendant’s negligent
conduct. Id. That argument, however, ignored “one of the
essential elements of a claim for negligence — injury to the
plaintiff.” Amfac I, 138 Ariz. at 156, 673 P.2d at 796. A
claim of legal malpractice requires more than negligence by an
attorney; in addition, “actual injury or damages must be
sustained before a cause of action in negligence is generated.”
Amfac II, 138 Ariz. at 153, 673 P.2d at 793; id. at 154, 673
P.2d at 794 (“[E]ven where a plaintiff has discovered actual
negligence, if he has sustained no damages, he has no cause of
action.”). While the underlying civil case is still pending on
appeal, the possibility always exists that the malpractice
plaintiff will eventually prevail in the civil litigation. See
Amfac I, 138 Ariz. at 156, 673 P.2d at 796 (“Apparent damage may
vanish with successful prosecution of an appeal and ultimate
8
vindication of the attorney’s conduct by an appellate court.”);
see also Phillips, 152 Ariz. at 418, 733 P.2d at 303 (noting
that a legal malpractice plaintiff must prove that but for
attorney negligence the plaintiff would have prevailed on its
claim or defense in the underlying lawsuit). Thus, one of the
critical elements of the tort claim, “the injury or damaging
effect” to the client caused by the lawyer’s negligence, “is not
ascertainable until the appellate process is completed or is
waived by a failure to appeal.” Amfac II, 138 Ariz. at 154, 673
P.2d at 794.1
B.
¶16 In addition to correlating the accrual of the cause of
action for legal malpractice to the presence of the elements of
the tort, the Amfac decisions recognized several practical
difficulties inherent in legal malpractice actions arising out
of alleged negligence in handling litigation. First, “[e]ven
1
In contrast, when a legal malpractice action arises in
a non-litigation context, the cause of action accrues when the
plaintiff knew or should have known that its attorneys had
provided negligent legal advice, and that the attorneys’
negligence was the direct cause of harm to the plaintiff,
notwithstanding that the plaintiff’s damages may not have been
fully ascertainable at that time. Commercial Union Ins. Co. v.
Lewis and Roca, 183 Ariz. 250, 252-53, 902 P.2d 1354, 1356-57
(App. 1995). This is because the harm is “irremedial” or
“irrevocable” at that point and will not be avoided by a future
appeal or other court proceedings. Id. at 254, 902 P.2d at 1358
(quoting Amfac I, 138 Ariz. at 156, 673 P.2d at 796, and Amfac
II, 138 Ariz. at 154, 673 P.2d at 794).
9
where an attorney’s performance in litigation is obviously poor,
most clients would not be able to make an informed judgment
whether the conduct constitutes malpractice” until “the
litigation is terminated and the client’s rights are ‘fixed.’”
Amfac I, 138 Ariz. at 157, 673 P.2d at 797. More importantly,
if the cause of action were to accrue at the time of the
allegedly negligent conduct, rather than at the time the damage
became “irremedial,” a client would often be required to file
suit while the original case was proceeding through the courts
and consequently would be forced to obtain either new or
additional counsel in the underlying litigation. “Nothing could
be more destructive of the attorney-client relationship.” Id.
at 158, 673 P.2d at 798.
¶17 The Amfac rule also serves important goals of judicial
efficiency. If the cause of action for legal malpractice were
to accrue at the time of the allegedly negligent conduct,
malpractice plaintiffs might well be required to file suit while
their underlying litigation was still pending. Moreover,
plaintiffs would be required to argue in their malpractice suits
that the underlying case would have had a different outcome in
the absence of their attorney’s negligence. The trial of the
malpractice claim would therefore involve the very evidence that
had yet to be presented in the trial of the underlying matter.
And even when the trial of the underlying matter has been
10
completed before a malpractice claim is filed, the trial court
in the malpractice action will be forced to go through the
exercise of determining how a case would have come out in the
absence of the alleged malpractice at the same time that the
parties are awaiting an appellate decision that may well answer
that very question or remand the case for a new trial.
¶18 These problems are avoided by the Amfac approach,
which requires the final termination of the underlying
litigation before the malpractice cause of action accrues. At
least in some cases, this approach will make a malpractice suit
unnecessary, either because the underlying litigation eventually
is resolved in favor of the malpractice plaintiff, or because
the appellate process has made plain that the result in the
underlying litigation would have been the same even absent the
attorney’s alleged malpractice. The Amfac rule thus not only
prevents premature litigation, but at least potentially prevents
the filing of wholly unnecessary malpractice lawsuits.
III.
A.
¶19 Glaze’s claim in this litigation necessarily is that
he would not have suffered the criminal conviction but for
Larsen’s negligence. See Restatement (Third) of the Law
Governing Lawyers § 53 cmt. d (2000) (“A convicted criminal
defendant suing for malpractice must prove both that the lawyer
11
failed to act properly and that, but for that failure, the
result would have been different . . . .”). Thus, many of the
same concerns over judicial efficiency and proof of the
existence of damage that motivated the Amfac rule, requiring
termination of the underlying civil litigation as a prerequisite
to institution of a legal malpractice action, are also present
in the criminal context.
¶20 But there is an important difference between civil and
criminal procedure with respect to the alleged errors of
counsel. In the civil context, a party generally cannot obtain
post-judgment relief because of the inexcusable neglect of
counsel. See Panzino v. City of Phoenix, 196 Ariz. 442, 445 ¶
7, 999 P.2d 198, 201 (2000). But a criminal defendant who
believes that his conviction was the result of his attorney’s
ineffective assistance may raise such claims through a petition
under Rule 32 for post-conviction relief. See State v. Spreitz,
202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002) (holding that
ineffective assistance of counsel claims must be raised in Rule
32 proceedings, not in a direct appeal).
¶21 Such post-conviction proceedings in the criminal case
may well establish that any alleged negligence by counsel was
not the cause of the conviction, either because the attorney did
not depart from the applicable standard of care or because the
conviction would have ensued in any event. See Strickland v.
12
Washington, 466 U.S. 668, 688, 693 (1984) (holding that
defendant claiming ineffective assistance of counsel must prove
that attorney failed to provide reasonably effective assistance
“under prevailing professional norms” and that any such
departures “actually had an adverse effect on the defense”).
Although the standard of proof imposed under Strickland arguably
does not correspond precisely to the burden placed on a
plaintiff in a legal malpractice action, the inquiry in each
case is at the very least so similar that post-conviction
proceedings often will provide definitive guidance as to whether
any alleged legal malpractice actually occurred and/or was the
cause of the defendant’s conviction. See McCord v. Bailey, 636
F.2d 606, 609 (D.C. Cir. 1980) (holding that legal standards for
ineffective assistance of counsel and for legal malpractice are
equivalent); Shaw v. State, 816 P.2d 1358, 1361 n.4 (Alaska
1991) (noting that the standards are “similar”).2 Thus, a rule
that requires termination of the underlying criminal proceedings
2
In a legal malpractice action, the plaintiff has the
burden of demonstrating by a preponderance of the evidence that
“but for the attorney's negligence, he would have been
successful in the prosecution or defense of the original suit.”
Phillips, 152 Ariz. at 418, 733 P.2d at 303. In a post-
conviction criminal proceeding, the defendant is not required to
show that counsel’s conduct actually altered the outcome of the
case, but rather “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
693-94. We need not decide today whether there is any
difference, practical or theoretical, between these standards.
13
will conserve judicial resources; the outcome of post-conviction
proceedings will often demonstrate that no malpractice suit will
lie.3
¶22 Other practical concerns also support a rule
preventing accrual of criminal malpractice actions while the
underlying case is still being litigated. If the criminal
defendant were required to institute a civil malpractice suit
while his case was still pending in the courts, counsel might
well be disqualified from further handling of the criminal case,
or at the very least be discouraged from doing so. It is also
quite likely that even if the attorney remains on the case after
being made a party in the civil suit, he would be distracted
from the job before him by defending against the civil
negligence claims. See Shaw, 816 P.2d at 1361. We are well
aware of the litigious nature of many prisoners; a rule that
encouraged the early filing of malpractice suits against counsel
unsuccessful at trial would likely have a severe and negative
impact on the functioning of the criminal justice system, which
necessarily relies heavily on appointed counsel and public
3
We are not confronted today with the issue of whether
the determination in a post-conviction relief proceeding that
ineffective assistance of counsel has been provided has a
preclusive effect in a subsequent civil case alleging
malpractice. See Restatement (Third) of the Law Governing
Lawyers § 53 cmt. d (“A judgment in a postconviction proceeding
is binding in the malpractice action to the extent provided by
the law of judgments.”).
14
defenders’ offices to provide indigent defense at trial and on
direct appeal. If appointed trial counsel are frequently
disqualified from handling a case on appeal because a
disgruntled client has filed a malpractice action, the public
will be forced to bear increased costs when new counsel take
over, as the latter will almost certainly be required to begin
from scratch in order to familiarize themselves with past
proceedings in the matter. Moreover, defense counsel would
routinely have numerous malpractice claims pending against them,
with a resulting negative effect on their professional liability
insurance premiums.
¶23 Thus, we see no reason to depart from the principles
announced in Amfac in the context of allegations of malpractice
in a criminal proceeding. Just as the malpractice cause of
action in the civil context does not accrue until all
proceedings in the underlying civil case, including appeals, are
terminated, a claim that an attorney’s malpractice resulted in
the conviction of a criminal client does not accrue until the
complete termination of the criminal proceedings. Those
proceedings include not only the direct appeal, but also any
proceedings involving petitions under Rule 32 and any retrials,
appeals from judgments in retrials, or post-conviction
proceedings following retrials. See Ariz. R. Crim. P. 32.3
15
(“[Rule 32 proceedings are] part of the original criminal action
and not a separate action.”).
B.
¶24 The accrual of a cause of action for malpractice in
the course of criminal representation depends not only on the
fact that the underlying criminal proceedings have been
terminated, but also on how they were terminated. Because an
essential element of the malpractice claim is that the plaintiff
would not have been convicted in the criminal action but for his
attorney’s negligence, the malpractice suit is in essence a
collateral attack on the conviction. Principles of finality and
respect for judgments have led “most jurisdictions addressing
the issue” to conclude that “a convicted defendant seeking
damages for malpractice causing a conviction must have had that
conviction set aside” as a prerequisite to obtaining damages in
a malpractice action. Restatement (Third) of the Law Governing
Lawyers § 53 cmt. d.
¶25 The decisions from other jurisdictions addressing this
issue vary somewhat in their language. See, e.g., Shaw, 816
P.2d at 1360 & n.3 (concluding that “post-conviction relief” is
a prerequisite to filing a legal malpractice claim); Steele v.
Kehoe, 747 So. 2d 931, 933 (Fla. 1999) (holding that “a
convicted criminal defendant must obtain appellate or
postconviction relief as a precondition to maintaining a legal
16
malpractice action” and that “the statute of limitations on the
malpractice action has not commenced until the defendant has
obtained final appellate or postconviction relief”); Johnson v.
Schmidt, 719 S.W.2d 825, 826 (Mo. 1986) (holding that a criminal
defendant must first be “successful in securing post-conviction
relief upon a finding that he was denied effective assistance of
counsel” before bringing a legal malpractice claim); Stevens v.
Bispham, 851 P.2d 556, 566 (Or. 1993) (holding that malpractice
plaintiff must “allege ‘harm’ in that the person has been
exonerated of the criminal offense through reversal on direct
appeal, through post-conviction relief proceedings, or
otherwise”); Adkins v. Dixon, 482 S.E.2d 797, 801 (Va. 1997)
(holding that successful post-conviction relief was a part of
the legal malpractice cause of action, and therefore, the
statute of limitations did not begin to run until post-
conviction proceedings had terminated). Despite the various
wording of the holdings in these cases, each agrees either
expressly or implicitly on one critical point — an element of
the cause of action for legal malpractice is that the criminal
conviction has been set aside, and the cause of action for
malpractice does not accrue until that has occurred.
¶26 While some cases suggest that the conviction must be
reversed through a particular post-judgment proceeding, we
believe such a rule unnecessary. Convictions can be vacated in
17
a variety of ways. It would make little sense to allow one
criminal defendant injured by his counsel’s malpractice to sue
if the conviction were reversed in a Rule 32 post-conviction
proceeding for ineffective assistance, while denying the same
right to a defendant whose conviction was vacated on some other
basis on direct appeal, or to one whose conviction was vacated
without the necessity of a Rule 32 ineffectiveness petition
because the State agreed to set aside the conviction upon
discovering proof of actual innocence. The requirement that the
conviction be set aside arises from our respect for the finality
of the judgment in the criminal case. If that judgment is
vacated by any lawful means, the plaintiff should not be barred
from pursuing civil remedies against counsel simply because of
the form of the reversal.
¶27 Rather, “any post-conviction relief suffices,” Shaw,
816 P.2d at 1360 n.3, as long as the underlying criminal
proceedings are thereby terminated favorably to the defendant.
While we need not delineate today all the methods by which such
a favorable termination may occur, the law governing suits for
malicious prosecution provides ample useful guidance on this
score. See Restatement (Second) of Torts § 659 (1977) (listing
ways in which a criminal proceeding can be terminated in favor
of the accused sufficient to allow a suit for wrongful
prosecution); id. at §§ 660, 661 (listing “indecisive”
18
terminations); cf. Heck v. Humphrey, 512 U.S. 477, 485-86 (1994)
(holding that in a 42 U.S.C. § 1983 action alleging malicious
prosecution the “plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus”). In this case, in
which the superior court dismissed the charges against Glaze
with prejudice, there can be no doubt that this requirement was
met.4
C.
¶28 California, while adhering to the majority rule that
“appellate or other postconviction relief [is] a predicate to
recovery in a criminal malpractice action,” Coscia, 25 P.3d at
674, has adopted a “two-track” approach to the statute of
limitations issue, id. at 680. Under this approach, the
4
At least one jurisdiction, California, requires that a
malpractice plaintiff not only have had his conviction set aside
as a prerequisite to filing a malpractice suit, but also that he
then allege and prove “actual innocence” in the ensuing
negligence action. Coscia, 25 P.3d at 672-73. We are not
confronted today with any questions about the substantive level
of proof required in the malpractice suit, and nothing in our
opinion should be read as adopting such a rule. Even a party
unable to prove actual innocence may be injured by attorney
malpractice; it is enough for the recovery of damages to require
that the plaintiff prove that his conviction was proximately
caused by his attorney’s negligence and that the underlying
criminal proceedings, for whatever reason, have terminated in
his favor.
19
malpractice plaintiff is required to file his claim within the
applicable malpractice period even if he has not yet obtained
post-conviction relief; the malpractice suit is then stayed
while the plaintiff pursues such relief. Id.
¶29 Larsen urges us to adopt this “two-track” approach.
He argues that requiring plaintiffs to file suit within two
years after they know or should have known of the lawyer’s
negligence will serve to prevent stale litigation and place
defendants on notice of possible claims. See Ritchie v. Grand
Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805
(1990) (noting that statutes of limitation are aimed at
protecting defendants and courts from stale claims, and at
protecting defendants from prolonged economic or psychological
uncertainty).
¶30 We decline that invitation. At the outset, it is
worth noting that the “two-track” approach in Coscia arose at
least in part from California’s particular statute of
limitations, which required that the malpractice action be
brought no later than four years from the date of the wrongful
act or omission. Coscia, 25 P.3d at 677 (citing Cal. Civ. P.
Code § 340.6(a)). Thus, under California law, the statute of
limitations would have expired in many cases before the criminal
defendant could have obtained the reversal of his conviction.
20
The “two-track” approach thus served to protect the plaintiff
against the loss of his cause of action.
¶31 Unlike the California statute, A.R.S. § 12-542 has no
arbitrary limit on the time in which legal malpractice claims
can be brought. Rather, the only question is when the “cause of
action accrues.” As noted above, the general rule is that a
cause of action accrues when all of the elements of the cause
are present and the plaintiff either knows or should have known
of them. Because we hold that favorable termination of the
criminal proceedings is an element of the cause of action for
malpractice, it logically follows that the cause does not accrue
until favorable termination occurs. Cf. Owen, 24 Ariz. App. at
252, 537 P.2d at 979 (holding that cause of action for malicious
prosecution does not accrue under applicable statute of
limitations until favorable termination of underlying criminal
proceedings).5
5
Larsen also relies upon Gebhardt v. O’Rourke, 510
N.W.2d 900 (Mich. 1994), in support of the “two-track” approach.
But the Michigan statute of limitations requires suit to be
brought within two years of the attorney’s last day of service,
or six months after the plaintiff discovered, or should have
discovered the claim, whichever is later. Id. at 902.
Moreover, in Michigan, the malpractice plaintiff is not required
to obtain post-conviction relief in order to bring the civil
suit. Id. at 905-08. Thus, it was clear in Michigan that the
malpractice cause of action would often accrue while criminal
proceedings were still pending. The “two-track” approach
recognized that both civil and criminal proceedings would
necessarily be pending at the same time, and simply allowed the
21
¶32 Moreover, the “two-track” approach presents serious
problems of judicial administration. It encourages the filing
of malpractice suits that may be unnecessary, because the
criminal defendant/malpractice plaintiff will often ultimately
be unable to obtain a favorable termination in the criminal
action. Although the civil suit may be stayed pending
completion of the criminal proceedings, the stay does not avoid
the conflict problems that will arise when a defendant in a
criminal matter brings suit against his current counsel. And,
because a “two-track” system implicitly assumes that the
malpractice cause of action accrues within two years of the
discovery of counsel’s negligence, malpractice suits will thus
often be required to be filed while cases still are on direct
appeal, thus maximizing the chances for conflict.
¶33 Nor do we believe that the rule we adopt today will
result in the filing of stale claims or seriously impact the
ability of counsel to defend legal malpractice trials. Although
the criminal process may last longer in many cases than civil
proceedings, appeals in complex civil cases may also last for
years; yet Amfac holds that a malpractice claim, even one
arising from actions or omissions early in the representation,
does not accrue until all appeals are complete. As Amfac I
________________________
civil action to be stayed pending resolution of the criminal
case.
22
noted, the dangers of delays are lessened when the alleged
malpractice occurs during litigation, because generally “a
record will have been made of the actions which form the
substance of the later malpractice action” in “court pleadings
or in hearing transcripts” in the underlying litigation. 138
Ariz. at 158, 673 P.2d at 798.6
¶34 Moreover, unlike the civil context, in which the
attorney/defendant may never learn during the underlying
proceedings that his client claims malpractice, criminal counsel
will usually be made aware of such a claim before the criminal
proceedings conclude. Such claims must usually be raised in a
defendant’s first Rule 32 petition, Spreitz, 202 Ariz. at 2 ¶ 4,
39 P.3d at 526, and defense counsel — who may be called as a
witness or otherwise notified of the challenge to his
effectiveness in the Rule 32 petition — will thus usually be put
on notice of a potential malpractice claim.
6
Counsel have ethical obligations to safeguard client
files. See Ariz. R. Sup. Ct. 42, ER 1.15 and 1.16. Thus,
unless different arrangements have been made with the client,
criminal defense counsel routinely will retain client files well
beyond the termination of representation. See Ariz. Comm. on
Rules of Prof’l Conduct Op. 98-07 (June 3, 1998) (stating that
indefinite retention of files “is appropriate in homicide, life
sentence, and lifetime probation matters;” in “most other
matters,” file retention for five years after termination of
representation is appropriate). Therefore, in most if not all
malpractice cases arising out of criminal litigation, the lawyer
will also have access to the case file in preparing a defense.
23
IV.
¶35 For the reasons discussed above, we hold that a cause
of action for legal malpractice that occurs during the course of
criminal litigation does not accrue until proceedings in the
criminal matter have been terminated favorably to the criminal
defendant. In this case, the proceedings so terminated on July
6, 1999, when the superior court dismissed the criminal charges
against Glaze with prejudice. Because the legal malpractice
action was filed on December 14, 2000, it was commenced less
than two years after the cause of action accrued, and thus was
timely under A.R.S. § 12-542.
¶36 The opinion of the court of appeals is vacated, and
this case is remanded to the superior court for further
proceedings consistent with this opinion.
Andrew D. Hurwitz, Justice
CONCURRING:
_
Charles E. Jones, Chief Justice
______
Ruth V. McGregor, Vice Chief Justice
_
Rebecca White Berch, Justice
_
Michael D. Ryan, Justice
24