Glaze v. Larsen

BRAMMER, Presiding Judge,

dissenting.

¶ 29 I write separately to respectfully express my disagreement with the result the principal decision reaches. Although I agree with much of the analysis in Judge Pelan-der’s concurrence, it does not go far enough to reach the result I conclude is appropriate.

¶ 30 When Glaze filed his petition for post-conviction relief on April 23, 1997, pursuant to Rule 32, he “knew of the malpractice” that, pursuant to Amfac I and II, begins the limitations period. Indeed, that conduct was the basis of his Rule 32 petition for post-conviction relief. It is not important that he, or one in his position, may later be unsuccessful in proving his assertion, although in this instance, Glaze was granted relief on that basis. Rather, it is important only that he knew of the conduct and whose conduct it was.

¶ 31 Although I have some serious question about the Amfac II court’s reasoning on when damage resulting from professional negligence occurs, see Coscia, there can be little debate about the central points the court made.7 I assume for purposes of this analysis that the Amfac I and II rule, established within the context of civil litigation, also applies in the context of a criminal prosecution.

¶ 32 The first point of the Amfac cases was that no legal malpractice action may be brought based on conduct arising in a civil litigation context until the case in which the conduct occurred has ended. The second point was that the action had to be brought within two years after the ease terminated, unless the malpractice had not yet been discovered, and then the action must be filed within two years of the date the malpractice became known or should have become known through the exercise of reasonable diligence. The last principal point is that the plaintiff must have suffered appreciable and nonspe-culative harm from the professional negligence.

¶ 33 In this case, the proper analysis would be to apply the Amfac I and II principles to the facts and determine when the case in which Larsen’s alleged malpractice occurred ended. The mandate for our decision upholding Glaze’s conviction was issued on February 28, 1997. Although Glaze’s Rule 32 petition, filed nearly two months later, related to this conviction, the two matters are distinct.

¶ 34 A request for post-conviction relief under Rule 32 may be instituted whether or not an appeal of the criminal conviction has been or may be filed and can continue on its own without reference to an appeal. Should relief be denied in the superior court, the petitioner may request appellate review, again, irrespective of the status of any appeal. Post-conviction relief proceedings may, and in many eases do, occur while an appeal of the conviction is pending. Indeed, many claims relating to a criminal case may be raised only by a petition for post-conviction relief, see Rule 32.1, and not by appeal. See, e.g., Spreitz (ineffective assistance of counsel claims must be raised in post-conviction proceedings). These factors combine to compel *408a conclusion that a criminal case terminates at the conclusion of the appeal process — that is, the date our mandate issues, see Joel Erik Thompson—for purposes of determining when a cause of action for perceived legal malpractice occurring during that case accrues.

¶ 35 Next, the policy concern noted in Am-fac I and approved in Amfac II, that the attorney-client relationship not be strained by the Ghent’s filing, during the pendency of the litigation, a malpractice action against the attorney, is not present here. Larsen’s representation of Glaze in the criminal case had already ended when Glaze accused him in the Rule 32 proceeding of professional negligence in the criminal case. And the allegation was made by separate counsel in that separate proceeding.

36 Finally, because Glaze had been convicted in the criminal prosecution, a conviction we upheld on appeal, I do not think it can be argued that he had not suffered appreciable and nonspeculative harm. Accordingly, when Glaze filed his Rule 32 petition on April 23, 1997, not only was the criminal case in which he had suffered the harm as well as his representation by the attorney he claimed had committed malpractice at an end, but he knew who had caused him the harm and he had identified the conduct he believed to be negligent. Therefore, all the Amfac I and II elements were present on April 23, 1997, considerably more than two years before December 2000, when Glaze filed his action against Larsen, and well outside the limitations period prescribed by § 12-542.

¶ 37 Because “[a]ll legal malpractice plaintiff-clients must sue, and all defendant-attorneys must be sued, within two years of the date the client is injured by the alleged malpractice,” I conclude that Glaze filed his legal malpractice action against Larsen more than two years after it had accrued. Amfac II, 138 Ariz. at 154, 673 P.2d at 794. For that reason it is barred by the application of § 12-542. Accordingly, I respectfully dissent.

. I also have difficulty accepting the principal decision's suggestion in ¶ 15, relying on Amfac I and II, that no irreversible harm occurs until the case is ended. In my view, the expense, anxiety, and loss of personal and professional time occasioned by attorney negligence that results in extra and ordinarily unnecessary court proceedings, including trials and appeals, most certainly constitute both fixed and irreversible harm, notwithstanding the ultimate conclusion of the proceedings.