2002

Note and Comment

CONSEQUENCES AND REPERCUSSIONS OF LEGAL MALPRACTICE TO THE CRIMINAL DEFENSE

ATTORNEY:   Nick Hedding

Copyright © 2002 Journal of Legal Advocacy & Practice, Inc.; Nick Hedding

WESTLAW LAWPRAC INDEX

ADV---- Advocacy & Lawyering Skills

I. Introduction

The unrealistic demands of perfection criminal clients make on their defense attorneys are consistently difficult to satisfy. Hindsight is twenty/twenty, but it seems that attorneys are often expected to flawlessly predict how best to approach designing a defense to a criminal charge. A criminal defense attorney must make judgment calls at every critical juncture of each individual case. Legal minds will differ as to which strategy is likely to be the most beneficial to a client. Circumstance, experience, and logic all influence an attorney in defense litigation. Not only must the law be used as the basis for decision-making, but intuition also plays a key role in determining the most effective defense approach for each set of facts.
A lawyer, unlike other professionals, is not given a second chance to correct litigation errors once a judgment is rendered. While a contractor who erects a building to the wrong specifications has the ability to correct his error in order to please the client and avoid a lawsuit, the criminal attorney is not afforded this same professional leeway once a plea bargain is finalized or the verdict handed down. Instead, the lawyer is often sued for malpractice or disciplined by the state bar for errors that may or may not have been considered reversible error. Does the malpractice claim give the client a second chance to lay blame for a plea bargain or guilty verdict where it does not belong?

Beginning in section II, this article will discuss the consequences of the recent decision in Coscia v. McKenna & Cuneo, [FN1] the California Supreme Court case handed down in July of 2001 which allows a criminal defendant once convicted, to file a malpractice lawsuit against his or her defense attorney without first showing they were actually innocent of the convicted offense. Section III will focus on the technical aspects of the malpractice lawsuit in general and more specifically on *223 malpractice laws in California and repercussions to both the attorney and the client in malpractice suits. Section IV will discuss the 1998 decision of Wiley v. County of San Diego, [FN2] which provides the background of the criminal malpractice suit and the evolution of many of the difficulties in this area of the law. Finally, this article will illustrate a piece of legislation that quite possibly could help remedy the need for malpractice lawsuits in specific types of cases.

In the State of California, like most other jurisdictions, when a client brings a malpractice suit against an attorney for the loss of the client's legal claim or defense, the client bears the burden of proof to demonstrate the existence of four elements. The first element is that the attorney had a duty to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise. The second element is a breach of that duty. Additionally, there must be a showing of a proximate causal connection between the breach and the resulting injury, and lastly actual loss or damage resulting from the attorney's negligence. [FN3] In a criminal matter, most courts adhere to the majority rule requiring that the plaintiff filing the malpractice claim against the attorney first prove his or her actual innocence. [FN4] This proof of innocence is the first requirement before the action can be heard. California, however, has not adopted the majority view because requiring a showing of actual innocence through an appeal or postconviction relief before filing a criminal malpractice action conflicts with the state's statute of limitations. [FN5]

A. The Legal Malpractice Claim
In California, a legal malpractice claim arises "when the client discovers or should discover the facts essential to the malpractice claim and suffers appreciable and actual harm from the malpractice." [FN6] Because the one-year limitations period in California's Code of Civil Procedure is not subject to tolling, the court in the Coscia case concluded that postconviction relief or a showing of innocence would bar most criminal malpractice actions on statute of limitations grounds. [FN7] *224 Thus, if a plaintiff tries filing a malpractice lawsuit after an appellate court has found him or her innocent and after the statute of limitations has run, his or her claim would either be dismissed or a summary judgment motion would be granted against him or her.

The decision in Coscia v. McKenna & Cuneo solidified California law by adjusting the Court of Appeal's holding, forming a two-track approach to criminal malpractice actions. [FN8] Similar to the majority view in the country, in California an individual convicted of a criminal offense must obtain reversal of his or her conviction, or other exoneration by postconviction relief, in order to establish actual innocence in a criminal malpractice action. [FN9] However, in contrast to the majority view, California also requires that, "a client who seeks recovery for criminal malpractice must file that claim within applicable statute of limitations period, regardless of whether client has yet obtained postconviction exoneration, and the court should stay malpractice action during period in which the client timely and diligently pursues postconviction remedies." [FN10] This decision allows disgruntled clients to file malpractice actions without first showing actual innocence.
The facts of the Coscia case bring up more confusion in the law as to when someone is considered innocent or guilty. Originally, appellant Coscia brought a legal malpractice claim alleging negligence against his former defense counsel because the attorney had him plead to a felony rather than a misdemeanor. Based on this assertion, the claim of malpractice should theoretically fail because whether a defendant is guilty of a felony or a misdemeanor, they are still guilty. Granted the difference between a felony and misdemeanor on a person's record is substantial. However, public policy dictates that no one should profit from his or her own wrongdoing. The criminal defense attorney made the public policy argument but the California Supreme Court allowed the appellant to amend his complaint to allege his actual innocence. [FN11]

There seems to be something fundamentally wrong with the sympathy granted to criminal clients who go after their attorneys for malpractice. In the Coscia case for example, after first pleading guilty to a felony, Mr. Coscia claimed the charge should have been a mere misdemeanor, finally deciding he was actually mistaken about pleading guilty in the first place and instead would like to claim his innocence. The judicial system should recognize and not reward the untruthfulness *225 of a person making a claim as serious as malpractice. Just as the discretion of a judge is rarely disturbed on appeal without a showing of over reaching, the complex negotiations between a defense attorney and a prosecutor in a plea-bargain should be given the same deference.
It seems logical that a truly innocent man would not plead to a felony or misdemeanor if he adamantly believed he had done nothing wrong. This assumption is supported by the basic premise of our criminal justice system, which declares a person is innocent until proven guilty. Even an experienced and masterful criminal defense attorney can only offer the client the plea bargain stipulated to by the prosecution. When facts that change the circumstances appear subsequent to the acceptance or rejection of a proposed plea, the attorney should not be blamed for a client's decision. Once a lack of innocence is conceded by the accused, he should not be allowed to profit from a harmless error made by his attorney, which occurs during the process of defending the case. In the Coscia case, the determination as to whether the plea bargain negotiated by the attorney was even an error was questionable. Apparently, at the time the plea bargain was offered by the prosecution a misdemeanor was not on the plea bargaining table. By allowing the client to sue for malpractice in this situation, the court, in effect, was retrospectively deciding that another attorney could have negotiated a better deal. This decision was premature and inappropriately subjected defense counsel to a lawsuit that must now be litigated.

The specific elements of a cause of action for a criminal malpractice claim include a duty, breach, a causal connection between the two and actual loss or damage. In criminal malpractice cases as previously discussed, there must be a showing of proof of actual innocence in the majority of jurisdictions.

The public policy considerations are difficult to refute, "Permitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime." [FN12] It is against public policy for the suit to continue in that it "would indeed shock the public conscience, engender disrespect for courts and generally *226 discredit the administration of justice." [FN13] Based on these policy considerations, it appears that the California Supreme Court's decision in Coscia found adherence to the statute of limitations more important than requiring a primary showing of actual innocence.

People should not be allowed to take advantage of their own criminal conduct. While the law in California still requires a showing of actual innocence in order to maintain a criminal malpractice action, it allows the case to be filed while the postconviction relief is sought. Malpractice lawsuits against criminal defense attorneys can have consequences and repercussions seemingly not contemplated by the court. If word spreads regarding the malpractice claim, an attorney's reputation may be badly damaged in the community. Whether the claim ultimately fails is irrelevant once the damage to the reputation is done. The criminal client may get the exact revenge sought after by simply being permitted to file the claim.

The court should give these considerations, which threaten the livelihood of its officers, more deference than the statute of limitations. The majority view requiring a showing of actual innocence first best serves to prevent this type of damage to the attorney's professional reputation. The statute of limitations should be tolled, and the requirements necessary to file a legal malpractice claim against a criminal defense attorney made more stringent, to protect attorneys from having their reputations destroyed. In other words, the claim should not be filed without a showing of actual innocence that allegedly the attorney negligently failed to prove. Is it unreasonable for the court's officers to request loyalty from the court in its dispensation of justice? The old saying that "Justice is blind" is detrimentally accurate when the court perceives the attorney as blameworthy based on a yet to be proved allegation made by a scorned client.

Putting on an effective criminal defense is a joint venture requiring cooperation between the client and his or her attorney. The client often does not comprehend why the law makes the prosecutorial process so complex. Often, the client withholds pertinent facts from the attorney fearing he or she may suffer negative repercussions by disclosing the truth. Locating potential witnesses is not an easy task for the defense investigator because frequently people do not want to get involved, or are just impossible to locate at a particular time.

*227 A. Wiley v. County of San Diego

Take the facts from a 1998 pre-Coscia case, Wiley v. County of San Diego, in which the defendant brought a legal malpractice action against the public defender who represented him, as well as against the County of San Diego. [FN14] Subsequent to the defendant's conviction, witness declarations were submitted in support of the first of two habeas corpus writs. [FN15] These declarations supported the defendant's innocence by asserting that another man was seen banging on the door of the victim the same morning she was allegedly attacked by the defendant. [FN16] The petitioner's claim of ineffective assistance of counsel was primarily based on the allegation there was inadequate investigation by the defense. [FN17] Despite this claim the first petition was denied. [FN18]
However, the second writ of habeas corpus contained additional evidence that the victim's son had recanted his trial testimony, which had placed the defendant at the scene of the crime. [FN19] Based on the evidence offered, the court determined that the attorney's inadequate investigation had deprived Wiley of exculpatory witnesses. The prosecution later dismissed the case. [FN20]

An attorney's performance should be judged on the facts available to him at the time the case is tried, not based on evidence that comes to light after the conviction is already in place. Wiley was nevertheless permitted to file a legal malpractice claim against his attorney and the County of San Diego. Prior to the trial, the court determined Wiley's innocence was not an issue and refused to require proof on the matter or submit the question to the jury. [FN21] The jury found in favor of Wiley and awarded him $162,500. [FN22]
This alleged inadequate investigation by Wiley's attorney is the exact type of ruling which places blame where it does not belong. Investigative work is very difficult. More often than not people prefer to not become involved in situations that do not concern them. It is not, and should not be, the duty of the attorney to attempt to force a witness to come forward. The flaw in the trial court's ruling seems so obvious on its face. The first writ was denied even with the evidence *228 that the defense investigation failed to reveal; the evidence being the witnesses' declarations which placed another man at the scene of the crime. The second writ was granted based on the additional information that the son of the victim lied on the stand at the trial. This evidence did not exist at the time the defense counsel tried the case because the witness had not admitted he was lying. It is almost as if the court is blaming the defense for not revealing the lie at the time of trial. The trial strategy of the defense counsel can only be based on the information available at the time of trial. Not even the most talented attorney can see into the future to predict a recantation of testimony.

The court of appeal reversed the judgment because the trial court erroneously admitted the transcript of the second habeas corpus hearing and erroneously excluded certain evidence on which the defense counsel based his trial strategy; this included a failed polygraph examination of the defendant, a psychological evaluation of Wiley, and a prior domestic violence incident. [FN23] While the court of appeal appropriately reversed the decision of the trial court, the argument made by the defense counsel, that a showing of actual innocence was required before making a claim for legal malpractice, was rejected. [FN24]
The court of appeal reasoned "it is difficult to defend logically a rule that requires proof of innocence as a condition of recovery, especially if a clear act of negligence of defense counsel was obviously the cause of the defendant's conviction of a crime." [FN25] The court's reasoning draws a conclusion without support, evidenced by statements like a "clear act" and "obviously the cause." How can any court make such assumptions without seeing all the facts in its entirety? Although it may appear the defense counsel was the cause of the conviction, let the defendant prove his actual innocence before being permitted to attack his attorney. Is it too much to ask the court to give the attorneys the benefit of the doubt before allowing something as damaging as a malpractice claim to be filed against them?
The Supreme Court of California granted review in the Wiley case to settle this important issue of state law. "The fact that nonnegligent counsel "could have done better" may warrant postconviction relief, but it does not translate into civil damages, which are intended to make the plaintiff whole. [FN26] While a conviction predicated on incompetence *229 may be erroneous, it is not unjust. [FN27] Only an innocent person wrongly convicted because of inadequate representation, has suffered a compensable injury; in that situation the nexus between malpractice and the palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss." [FN28] The court goes on to differentiate between civil and criminal malpractice claims. In contrast to a civil malpractice claim, a criminal "defendant's own criminal act remains the ultimate source of his predicament irrespective of counsel's subsequent negligence. Any harm suffered is not 'only because of' attorney error but principally due to the client's antecedent criminality." [FN29] Thus a different rule involving separate elements in a criminal malpractice claim as opposed to a civil claim is easy to defend, according to the state's highest court. [FN30]"All criminal defendants have a Sixth Amendment right to effective assistance of counsel, that is, counsel acting reasonably within the range of competence demanded of attorneys in criminal cases." [FN31] It is critical to note that a criminal defendant will not be denied the right to rectify an attorney error solely because he or she is unable to sue for malpractice. There are many postconviction remedies available to a criminal defendant including appeal and habeas corpus. [FN32]
Blaming the criminal defense attorney does not accomplish what was guaranteed to the defendant in the first place - effective assistance of counsel. The criminal justice system must keep its purpose in perspective at all times. Society does not need the system to force attorneys who have made bad judgment calls, or even blatant errors, to compensate defendants convicted of criminal activity. The bar associations of the respective states, a separate body governing attorney conduct, should be left to discipline the attorney who makes an error. The attorney who repeatedly makes errors is often suspended or even disbarred depending on the particular circumstances. Judges and opposing counsel are the qualified individuals who report such errors. This type of disciplinary action is appropriate and sufficient when it comes to reprimanding criminal defense counsel for unacceptable error. Unfortunately, disgruntled clients also fall within the category of those permitted to allege error. Such clients are given an additional vehicle to make claims in the form of the malpractice lawsuit.
*230 In Wiley, the California Supreme Court affirmed the judgment of the court of appeal and remanded the case down to the superior court for a retrial. [FN33] Wiley held that in a criminal malpractice action, a showing of actual innocence is a necessary element to the cause of action. Therefore, on retrial Wiley will have to prove by a preponderance of the evidence that he did not commit battery with serious bodily injury. [FN34]
In the concurring opinion, Judge Werdegar brings up the valid statute of limitations problem discussed, supra, in the Coscia case. The majority of the California Supreme Court in Wiley offered no solution for the result of its decision, which effectively precluded the filing of criminal malpractice claims. [FN35] As discussed in Coscia, supra, the statute of limitations in most cases will likely run long before the convicted person has a chance to have the conviction set aside and thus, remove the bar (collateral estoppel) to establishing his or her actual innocence. [FN36]

In the dissenting opinion in the Wiley case, Judge Mosk opines the requirement of actual innocence is unnecessary. His reasoning is as follows "When considering a trial counsel's performance in an ineffective assistance claim, we 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."' [FN37] This view is narrow in its construction because it fails to recognize the needless additional litigation involved in these claims. If there is such a strong presumption, then why allow the criminal plaintiff to file without first proving his innocence? Counsel providing reasonable professional assistance should be aided by the court they serve and protected from reputation damaging malpractice claims.

Damage to the attorney's reputation is already done once the case gets filed. The attorneys are then forced to litigate and defend themselves. Additionally, when looking at the adversarial system as a whole, why does the criminal defense counsel take the blame regarding, for example, admission of suppressible evidence? Why not blame the prosecution for filing the charges in the first place, or for offering evidence they should know is inadmissible against the defendant? What about the arresting officer? Or for that matter, why not blame the judge for admitting inadmissible evidence. If the goal of our judicial system is truth, fairness and justice, should not each respective *231 entity of the court seek to attain a just decision? If the prosecution, defense and judge all worked together towards the attainment of the truth for its own sake, justice would surely be served more effectively than by blaming the defense counsel.

To illustrate this argument, the United States Supreme Court decision in Brady v. Maryland provides a vivid picture of the criminal justice system. [FN38] In Brady, the prosecutor suppressed a confession in violation of the defendant's due process rights under the Fourteenth Amendment. [FN39] There was a deliberate deception by the prosecution when evidence favorable to the accused was withheld. Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." [FN40] This apparent victory for the rights of the accused was then diminished when the court went on to restrict the new trial to the question of punishment. [FN41]

The court in Brady reasoned that if the confession of the co-defendant was put before the jury it could not have "reduced the appellant Brady's offense below murder in the first degree." [FN42] The opinion went on to state, "A sporting theory of justice might assume that if the suppressed confession had been used at the first trial, the judge's ruling that it was not admissible on the issue of innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record." [FN43] The court however did not allow a new trial on the issue of guilt or innocence, and the conviction stood. The United States Supreme Court in Brady provided insight into how the system should operate. Theories of justice are expounded with passionate vigor, only to be undercut by the creation and manipulation of exceptions to what are supposed to be concrete rules. A truly just system would leave no doubt as to whether someone was guilty or innocent. A system seeking justice as the ultimate goal would have granted Brady a completely new trial.

There is a place in our society for games, but the courtroom is not one of them. Competition exists in all facets of our daily lives - such drive is part and parcel of what makes our country great. However, *232 competition in the courtroom between a prosecutor who is pushing for a guilty verdict and a defense attorney who is focused on freeing the alleged criminal, regardless of his or her guilt, may distort the justice system turning it into a game with potentially catastrophic consequences. When it comes to taking away the freedom of individuals who may or may not have broken the law, the competitive nature of the criminal justice system should yield to the higher goal of attaining truth and justice.

State legislation should change the standards of malpractice by requiring more before allowing the plaintiff to file. Even a showing of actual innocence may not be the appropriate threshold for permitting a claim for legal malpractice to be filed against a former criminal attorney. Proving actual innocence is often just as difficult as proving guilt. A more effective statute would require that before the malpractice claim may be filed it must contain direct evidence that the defense counsel in a criminal case had the ability, based on the evidence available at the time of disposition or trial, to demonstrate the reasonable doubt necessary to dissuade a possible finding of guilt. A judge could review the criminal defendant's request to file a legal malpractice claim and either grant or deny the motion based on its factual content.
In essence, the criminal justice system exists to punish the guilty for unlawful conduct after establishing the truth regarding the underlying facts of a particular case. Ascertaining the truth is often the most difficult task facing the court. For example, the plea bargain process between the prosecution and the defense is a complex negotiation often not recorded for any court record. Compromises reached between opposing counsel should, however, be given the same deference as the judge's discretion. In most cases, an appellate court will not reverse the holding of a judge absent plain error or a clear abuse of discretion. The reason it is not easy to reverse a holding is because often times not everything that goes into making the ruling is on the transcript. There is a key distinction between actually being in the courtroom to watch the case unfold and merely reviewing a transcript.

The court seems to ignore the intricate yet incredibly relevant details involved in defending a criminal client. Hypothetically, what if a client admits his or her guilt to his or her defense counsel. Subsequently, the prosecution's key evidence is found to have been obtained in violation of the defendant's Fourth Amendment rights and should be suppressed. If the defense counsel has the evidence suppressed and the case gets dismissed, has justice been served? Has the *233 truth been ascertained? Should the family of the victims be allowed to sue the prosecutor or arresting officers for malpractice? Why not? The answers may lie in the almighty dollar. One might contend that because defense counsel is paid so much more for his or her services than the prosecutors, they are subjected to legal malpractice claims when errors are committed. Statistical salary figures of the prosecution as compared to the defense counsel aside, the defense counsel potentially has the ability to make many times the amount of money even the highest paid prosecutor is compensated. The criminal defense attorney has the choice whether to accept someone as a client, while the prosecution must prosecute based on the evidence.

Legislation already reflects a need for some measure of immunity for attorneys from criminal malpractice. Government Code section 820.2 grants immunity to public officials, such as public defenders, for discretionary acts. [FN44] Is the only distinction between private criminal defense counsel and an assigned public defender the amount of money each makes? Why would the Government hold attorneys to a separate standard based on how much they are paid? Effective assistance of counsel should be the same for the rich as it is for the poor. This rule effectively allows the wealthy to recover tort damages in a legal malpractice action while denying the poor person the same remedy. If public defenders were not immune but forced to pay civil judgments, the money would no doubt come from the governmental body employing them. Could this be the true reason for the public defender's immunity?