dissenting.
I disagree with the court’s causation analysis, with its collateral estoppel analysis, and with its holding that a person convicted of a crime cannot recover damages from an attorney whose malpractice contributed to the person’s incarceration.
I. CAUSATION
In September 19811 Howarth entered a plea of nolo contendere to the charge of sexual assault in the first degree, a violation of AS 11.41.410,2 and received a ten-year presumptive sentence.3 The superior court later found that Howarth had established ineffective assistance of counsel and granted Howarth’s motion to withdraw the plea he entered in 1981. In May 1988 Howarth entered a plea of nolo contendere to the charge of sexual assault in the second degree, a violation of AS 11.41.420,4 for which he received a presumptive sentence of four years.5
Howarth remained in prison from May 1981 until May 1988. This seven-year period of incarceration forms the basis for Ho-warth’s claim of damages. The sentence that resulted from Howarth’s May 1988 nolo con-tendere plea was limited to four years. Therefore, this plea could not be the cause of more than four years of Howarth’s incarceration. For at least three years of his incarceration, another cause must exist.
The court’s decision is premised on the assumption that Howarth’s “sentence would have been four years and that because of the attorney’s negligence the sentence was seven years.” Op. at 1337. This would seem to settle the causation question, but the court does not see it this way. Instead, the court applies the causation test enunciated in Vincent by Staton v. Fairbanks Memorial Hospital, 862 P.2d 847 (Alaska 1993), to Ho-warth’s conduct, and holds that “but for” *1338Howarth’s sexual assault of L.M. he would not have been incarcerated for seven years. Op. at 1333. The court misapplies the test. The Vincent test should be applied to Welch’s actions, for Welch is the defendant in this malpractice claim. See id. at 851. If Howarth’s three years of additional incarceration would not have occurred without Welch’s malpractice, then Welch is liable for damages under the first prong of the Vincent test. The second prong of the test, and the question on which liability should turn, is whether Welch’s actions were a “substantial factor” in bringing about the harm, i.e., an additional three years of incarceration for a crime Howarth may not have committed.
II. COLLATERAL ESTOPPEL
In Shaw v. State, Department of Administration, 861 P.2d 566 (Alaska 1993) (Shaw II), the court held that a defendant in a legal malpractice claim “may raise the issue of the plaintiffs actual guilt as an affirmative defense.” Id. at 572. Thus, the State could argue that even if Howarth’s conviction of sexual assault in the second degree was not the proximate cause of his seven years of incarceration, it was Howarth’s “actual guilt” of the offense of sexual assault in the first degree which caused the seven years of incarceration. However, the question remains whether the State may use Howarth’s plea to, and conviction of, sexual assault in the second degree as evidence of Howarth’s “actual guilt” of sexual assault in the first degree.
In Scott v. Robertson, 583 P.2d 188 (Alaska 1978), the court articulated the standard for determining whether a criminal conviction is admissible in a civil proceeding as evidence of a material fact on which the conviction rests. Under Scott, a criminal conviction can be admitted as evidence in a later civil trial if “(1) the prior conviction is for a serious criminal offense; (2) the defendant in fact had a full and fair healing; and (3) it is shown that the issue on which the judgment is offered was necessarily decided in the previous trial.” Id. at 191-92 (footnotes omitted). In Scott, the court additionally noted that a particular offense, although technically subject to incarceration, may not justify its being considered a “serious offense” for the purposes of fulfilling the first Scott prerequisite if the likelihood of incarceration is too remote. Id. at 192 n. 17. We also observed that
McCormick explains that a defendant might not make the effort to defend himself fully if the penalty were relatively insignificant. Weinstein also agrees that the possible lack of motivation to defend against minor charges casts doubt on the fairness and reliability of the judgment.
Id. at 192 n. 16 (citations omitted).
These cautionary comments are relevant in determining whether Howarth’s plea of nolo contendere to the amended charge meets the first Scott prerequisite. The court’s truism that “all felonies are serious offenses,” Op. at 1334, does not resolve the question of whether Howarth lacked motivation to defend against the charge of sexual assault in the second degree. Howarth was offered his freedom from incarceration upon agreeing to plead nolo contendere to the reduced charge of sexual assault in the second degree. On accepting the plea bargain he faced no probation or parole. Under these circumstances, it would be fair to conclude that Howarth lacked the motivation to defend against the charge of sexual assault in the second degree. Scott, 583 P.2d at 192; see also Coney v. Municipality of Anchorage, 725 P.2d 709, 712 (Alaska 1986) (stating that in applying the Scott test, the court must consider the “realities of the litigation”).
The court cites policy reasons for not allowing Howarth to claim “elements essential to his conviction did not exist.” Op. at 1335. I agree that Howarth should be estopped from arguing he did not commit sexual assault in the second degree. But the policies underlying the finality of plea bargains do not support the State’s position that Howarth should also be estopped from litigating his “actual guilt” of sexual assault in the first degree. I would hold that the trial court erred in finding Howarth’s nolo contendere plea to sexual assault in the second degree estops him in the present case from litigating his “actual guilt” of sexual assault in the first degree.
*1339III. POLICY
The practical effect of today’s opinion is that a plaintiff may not sue his or her defense attorney for malpractice arising out of criminal representation. The question which has yet to be resolved in the present case is whether Howarth served three years for a crime he did not commit, i.e., sexual assault in the first degree. It is surely not the public policy of this state to penalize persons for crimes they did not commit. If Welch’s negligent representation of Howarth was responsible for three years of incarceration for a crime Howarth did not commit, no public policy can justify the result the court reaches.
IV. CONCLUSION
Genuine issues of material fact exist concerning whether Welch committed malpractice in his representation of Howarth. If Welch did commit malpractice, genuine issues of material fact also exist regarding the proximate cause of Howarth’s damages. I would reverse the superior court’s grant of summary judgment, and remand the case for further proceedings.
. All statutory citations are to the statutes as they existed at the time Howarth allegedly committed a crime.
. AS 11.41.410 provided in part:
(a) A person commits the crime of sexual assault in the first degree if,
(1) being any age, he engages in sexual penetration with another person without consent of that person;
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(b) Sexual assault in the first degree is a class A felony.
. AS 12.55.125 provided in part:
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(c) A defendant convicted of a class A felony may be sentenced to a definite term of imprisonment of not more than 20 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
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(2) if the offense is a second felony conviction, 10 years....
. AS 11.41.420 provided:
(a) A person commits the crime of sexual assault in the second degree if he coerces another person to engage in sexual contact by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone or by causing physical injury to any person, regardless of whether the victim resists.
(b) Sexual assault in the second degree is a class B felony.
. AS 12.55.125 provided in part:
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(d)A defendant convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than 10 years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155 — 12.55.175:
(1) if the offense is a second felony conviction, four years....