Shaw v. State, Department of Administration

COMPTON, Justice,

dissenting in part.

This court has held that the guilt of a defendant in a criminal proceeding is relevant in a civil malpractice suit brought by the defendant against his or her former defense attorney. In Shaw v. State, 816 P.2d 1358 (Alaska 1991) (Shaw I), we held that “a convicted criminal defendant must obtain post-conviction relief before pursuing an action for legal malpractice.” Id. at 1360. Therefore only a defendant who is not guilty of the offense charged, by virtue of having had his or her conviction set aside, can maintain a civil malpractice suit. The court now adds further limitations, including creation of a new concept of criminal guilt, guilt by a preponderance of the evidence. The court calls this “actual” guilt. The court then penalizes “actually” guilty plaintiffs by denying them the ability to recover civil damages resulting from their former defense attorney’s proven negligence.

The court holds that Shaw, in order to maintain a civil suit against his former defense attorney for malpractice allegedly occurring in the criminal proceeding, must establish: (a) that the conviction has been set aside; (b) duty; (c) breach of duty; (d) causation; and (e) damages.

*574In regard to causation, the court remarks that Shaw “must establish by a preponderance of the evidence that ‘but for’ the attorney’s negligent misrepresentation, the criminal jury would have returned a more favorable verdict.” He “will have to prove a jury would not have found him guilty of the charged conduct beyond a reasonable doubt ... to prove he would have been found innocent at trial on the original charges_” “In so proving his legal innocence,” [Shaw will be] limited by the procedural and evidentiary rules applicable in criminal proceedings and trials and “may prove his innocence only through the use of evidence and witnesses that would have been admissible if presented at his criminal trial.” 1 Op. 572-573.

If Shaw proves all the above, his former defense attorney may then prove, by a preponderance of the evidence, the affirmative defense of Shaw’s “actual” guilt. The former defense attorney will not be limited to presenting evidence admissible at the criminal trial. Evidence may include confidential communications and otherwise suppressible evidence of “actual” guilt.

The burdens imposed on these plaintiffs, coupled with the advantage given former defense attorneys, virtually forecloses attorney malpractice suits arising out of criminal representation. No public policy, nor any case law, can justify this result. I am unpersuaded by arguments in support of these further limitations, and therefore dissent.

I.

The court’s limited summary of the underlying facts of this case does not convey the essence of Shaw’s claim. Shaw and Toney Powell were arrested and charged with stealing seventeen pairs of pants from a mens’ store where they both worked as janitors. Both Shaw and Powell were represented by the same assistant public defender (PD). The PD advised the court that a “conflict situation” was arising. However, separate attorneys for Shaw and Powell were never provided.

Powell was willing to testify that Shaw had nothing to do with the theft but defense counsel did not permit him to do so. Further, [defense counsel] did not advise Shaw that he could take the stand in his own defense, because he wanted to protect Powell. Additionally, several witnesses at trial were not allowed to testify as to statements by Shaw because of the threat to Powell.

Id. at 1359. Powell and Shaw were both convicted.

Shaw failed to appear for sentencing and was arrested in 1979 for failure to appear. After sentencing on the original charge, and while appealing his failure to appear conviction, Shaw was arrested and pled nolo contendere to being a felon in possession of a handgun. Id. at 1360. Shaw served time in prison from December 1979 until March 1980 on the original conviction, from December 1981 until September 1982 *575on the failure to appear charge, and from October 1985 until September 1986 on the felon in possession charge.

On August 15, 1986, the superior court set aside Shaw’s 1973 convictions because they were constitutionally defective. Id. (emphasis added). In order to obtain post-conviction relief based on ineffective assistance of counsel, Shaw had to show “that his lawyer’s skill ... fell below that of a lawyer with ordinary training and skill in the criminal law, and second, that this defective performance contributed in some way to his conviction.”

Id. at 1361 n. 4 (quoting Larson v. State, 614 P.2d 776, 780 (Alaska 1980)). All time served was traceable to the original conviction.

II.

Alaska is already part of the “majority” of courts that hold innocence relevant in a civil malpractice suit arising out of a criminal proceeding. The court cites John M. Burkoff, Criminal Defense Ethics § 3.1(c), at 3-11 (1992), as authority for its proposition that “a vast majority of courts have held that innocence or actual guilt of the criminal defendant is relevant.” 2 R. Mal-len & J. Smith, Legal Malpractice § 21.3 at 80 (3d ed. 1992), voices a similar conclusion. Both already have included Alaska as part of this “majority” of courts which hold guilt or innocence relevant in the civil malpractice suit, because of our decision in Shaw I.2

In Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993), the Oregon Supreme Court adopted a requirement of post-conviction relief or some other exoneration of the underlying offense. The Stevens court cited Shaw, along with Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987), and Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783 (1991), as the “leading cases that require successful post-conviction relief proceedings, or some other allegation of innocence of the underlying charge.” 851 P.2d at 562.

However, the court mischaracterizes the “majority” which considers guilt or innocence relevant, because other jurisdictions which require proof of innocence by the plaintiff in the civil malpractice suit do not necessarily require post-conviction relief in the criminal proceeding. In Carmel, 518 N.Y.S.2d at 606, 511 N.E.2d at 1127, plaintiff’s conviction in the criminal proceeding had not been successfully challenged prior to the civil malpractice suit. In Glenn, 569 N.E.2d 783, the plaintiff was required to prove innocence by a preponderance of the evidence, but post-conviction relief was held to be a prerequisite to recovery. Pennsylvania, on the other hand, is in the “minority,” requiring not only post-conviction relief and proof of innocence, but also a showing of reckless or wanton disregard of the plaintiff’s interest, before the former criminal defendant can recover. Bailey v. Tucker, 533 Pa. 237, -, 621 A.2d 108, 114 (1993).3

Until today people of the State of Alaska were considered innocent of crime unless and until found guilty beyond a reasonable doubt in a criminal proceeding. The court now makes a distinction between the “actual” guilt and the “legal” guilt of a criminal defendant. What heretofore has been simply called guilt is now called “legal” guilt. Op. 570 n. 3. “Actual” guilt, on the other hand, becomes a determination in a civil trial, by a preponderance of the evidence, that the civil plaintiff engaged in the criminal conduct of which he or she was accused in a criminal proceeding. I suggest that the affirmative defense of “actual” guilt, *576proven by a preponderance of the evidence, has no place in our jurisprudence.4

Our criminal justice system enables the state to bring its tremendous prosecuting resources and authority to bear on an individual. Thus the system contains numerous safeguards to protect the individual. These safeguards, both constitutional and procedural, include the right to the assistance of an attorney, the right to a speedy trial, the right to a jury trial, the privilege against self-incrimination and the requirement of proof beyond a reasonable doubt. “These rules are historically grounded rights of our system, developed to safeguard men [and women] from dubious and unjust convictions, with resulting forfeitures of life, liberty, and property.” Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). These safeguards enable us to be more certain that when we label someone “guilty,” we can be reasonably confident that they are in fact guilty. However, they are guilty of the crime charged. The court now abolishes the safeguards that ensure this degree of accuracy and brands a person “actually” guilty of a crime, if a trier of fact decides it is more probably true than not that the person committed the crime originally charged.

The court justifies adjudication of “actual” guilt on the basis of distinctions between criminal and civil proceedings. It makes the astonishing assertion that “a primary goal, perhaps the paramount goal, of the criminal justice system is to protect the innocent accused against erroneous conviction.” Op. at 570. It then notes that while reliable fact finding is a goal of both proceedings, “[i]n the criminal system ... the goal of reliable factfinding and the goal of protecting the innocent accused may conflict.” Op. at 571. (Footnote omitted). In that case, reliable factfinding must give way to protecting the innocent accused, and “the determination of the truth ... is subsumed in order to fulfill the goal of protecting the innocent.” Op. at 571.

There being no such conflict in the civil system, the former defendant does not have the constitutional and procedural safeguards afforded in a criminal proceeding, including proof beyond a reasonable doubt. Thus we can adjudicate “actual” guilt.

If a conviction is set aside because of the ineffective assistance of counsel, and proceedings against a defendant dismissed, was the conviction erroneous? Has the goal of protecting an innocent accused been achieved? Is the defendant innocent of the crime for which he or she was charged? The answer in each instance is “yes.” A judicial determination of whether the defendant is guilty of the crime originally charged has been completed.

The court denigrates the criminal justice system by its implicit assertion that the greater protection afforded defendants in criminal proceedings, such as constitutional and procedural safeguards, including the heightened burden of proof, impede fact-finding, obscure truth and free defendants on technicalities. Its attempt to then justify a civil determination of “actual” guilt by trumpeting the factfinding, truth revealing pre-eminence of the civil justice system rings hollow. The court conveniently overlooks the fact that our civil justice system endorses such procedures as establishment and preclusion orders which render fact and truth absolutely irrelevant.

Civil cases involve questions of civil responsibility, not questions of criminal guilt or innocence. In this case, Shaw must first have had his conviction set aside. This means that he must have proven that his former defense attorney’s actions fell below the standard of conduct for a lawyer with ordinary training and skill in criminal law, and that this defective performance contributed to the conviction. Duty and breach of duty have been admitted. Thus, even though the negligence of the former defense attorney has been established, the *577court holds that the attorney may avoid civil responsibility if the attorney can prove, by a preponderance of the evidence, that Shaw was “actually” guilty of the crime charged.

III.

The court asserts that public policy demands this result. “[C]ivil recovery should not be a tool for shifting an individual’s responsibility for the individual’s criminal acts.” Slip Op. 10. The court cites Adkinson v. Rossi Arms Co., 659 P.2d 1236 (Alaska 1983) and Lord v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991). In Adkinson, a plaintiff convicted of manslaughter attempted to bring a tort action against the gun manufacturer for personal losses suffered as a result of imprisonment. In Lord, a plaintiff convicted of kidnapping, rape, and assault attempted to bring a tort action against the bar, which served him alcohol, for the damages he suffered as a result of his imprisonment.

The court notes that Adkinson and Lord differ from the present case in that Shaw does not claim his attorney contributed to the criminal act. The court conveniently fails to note that both Adkinson and Lord were convicted and had not challenged the validity of the convictions. I agree that we should not allow the convicted criminal to “shift” the responsibility for the consequences of his or her criminal acts. When, as a result of the criminal proceeding, it has been determined that a defendant is guilty, the defendant alone should bear the responsibility and consequences.

However, the public policy which denied recovery to civil plaintiffs in Adkinson and Lord is fully served by our decision in Shaw I, which requires the criminal defendant to obtain post-conviction relief prior to bringing his or her civil malpractice suit. Once the criminal defendant has obtained post-conviction relief and his or her conviction has been set aside, there has been a judicial determination that there is no criminal responsibility. There simply is no public policy which should allow a negligent attorney to shift the responsibility for that attorney’s negligence onto a plaintiff who has demonstrated that he or she is not guilty of the crime charged.

The court’s adoption of the rule that guilt by a preponderance of the evidence is an affirmative defense to a civil malpractice suit has three unfortunate results. First, as a practical matter a person who is in fact innocent of criminal conduct is more likely to be found guilty when preponderance of the evidence is the standard of proof than when guilt beyond a reasonable doubt is the standard of proof. Safeguards in criminal proceedings that ensure that innocent people are not found guilty will not apply in the civil malpractice suit.

Second, a person who engages in specific conduct is treated very differently if charged with a crime, compared to a person who engages in the same conduct, but is not charged with a crime. For example, a civil defendant — not charged with a crime — who commits fraud, and is found civilly liable because of his or her attorney’s malpractice, may recover civil damages against the attorney in a civil malpractice suit, including punitive damages, regardless of what the defendant did in fact. However, a criminal defendant who commits the same fraud, yet who would not have been convicted but for the attorney’s malpractice, may never even get his or her case before the trier of fact.

Third, attorneys in civil cases are treated very differently from attorneys in criminal cases. The criminal defense attorney will no longer be found civilly liable for malpractice if he or she defends a person later found “actually” guilty of the crime originally charged, by a preponderance of the evidence. Yet attorneys in civil proceedings will continue to be exposed to liability for civil malpractice, regardless of what their client did or did not do in fact.

IV.

Alaska already places the very heavy burden on a criminal defendant to obtain post-conviction relief as a prerequisite to maintaining a civil malpractice suit against his or her former defense attorney. Allowing a negligent attorney to escape liability *578by permitting a trier of fact to determine that the civil plaintiff, who no longer stands convicted of any crime, probably committed the crime for which he or she has not been convicted, violates principles of our criminal justice system and our civil tort system. The civil plaintiff has already proven, by post-conviction relief in the criminal proceeding, that the former defense attorney’s skill fell below minimal standards of a lawyer with ordinary skill and training in criminal law, and that this defective performance contributed to the conviction.

If at all, I would only recognize an affirmative defense that despite the attorney’s negligence, the civil plaintiff would have been convicted of the crime originally charged, beyond a reasonable doubt, at a trial in which all constitutional and procedural safeguards were afforded.

. It is not possible to reconcile this discussion of causation with the court's discussion of causation in Shaw I. One justification advanced in Shaw I for requiring a defendant to obtain post-conviction relief as a prerequisite to maintenance of a civil malpractice suit against former defense counsel was that

post-conviction relief promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated later in the legal malpractice action. This is because dispositive post-conviction relief is relevant to the issue of proximate causation.

Shaw, 816 P.2d at 1361 (citation omitted) (emphasis added). In a footnote to the citation, the court remarks:

The burden of proof in the two proceedings is similar. In obtaining post-conviction relief for ineffective assistance of counsel, defendant must show “that his lawyer’s skill ... fell below that of a lawyer with ordinary skill and training in the criminal law, and ... that this defective performance contributed in some way to his conviction.” Larson v. State, 614 P.2d 776, 780 (Alaska 1980). In a post-conviction relief proceeding the petitioner must prove by a preponderance of the evidence all facts necessary to overturn the prior judgment of conviction. Merrill v. State, 457 P.2d 231, 234 (Alaska 1969), rev’d on other grounds, Donnelly v. State, 516 P.2d 396 (Alaska 1973).

Unless successful post-conviction relief based on the ineffective assistance of counsel satisfies the causation element of the civil malpractice suit, there will be no promotion of judicial economy, and that justification for requiring post-conviction relief evaporates.

. It seems redundant for this court to now claim it is aligning itself with a "majority" of courts of which it is already a part.

. A number of courts do not require either post-conviction relief or innocence as elements of a civil malpractice case. See Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (holding post-conviction relief is not an element of legal malpractice action arising from criminal representation); Schlumm v. Terrence J. O’Hagam, P.C., 173 Mich.App. 345, 433 N.W.2d 839 (1988) (holding that the trial court erred in ruling that the plaintiff must plead and prove his innocence).

. Neither Burkoff nor Mallen & Smith suggest a defense of "actual guilt." In the treatises they have written, not one case is cited that supports the proposition that proof of "actual” guilt by a preponderance of the evidence, is an affirmative defense to a civil malpractice suit brought by a plaintiff whose criminal conviction has been set aside.