Ang v. Martin

Citation154 Wash.2d 477,114 P.3d 637
Decision Date23 June 2005
Docket NumberNo. 74698-2.,74698-2.
CourtWashington Supreme Court
PartiesJessy A. ANG, M.D., and Editha A. Ang, husband and wife; and Evergreen Medical Panel, Inc., a Washington corporation, Petitioners, v. Michael G. MARTIN and Jane Doe Martin, his wife, and the marital community comprised thereof; and Richard Hansen and Jane Doe Hansen, his wife, and the marital community comprised thereof, Respondents.

Robert B. Gould, Seattle, for Petitioners.

Sam Breazeale Franklin, Marc Rosenberg, Lee Smart Cook Martin & Patterson, Seattle, Christopher Holm Howard, David R. Ebel, M Owen Gabrielson, Holland Knight LLP, Seattle, for Respondents.


¶ 1 We are asked to determine whether plaintiffs in a malpractice action against their former criminal defense attorneys were properly required to prove by a preponderance of the evidence that they were actually innocent of the underlying criminal charges. The Court of Appeals concluded that, as an element of their negligence claim, plaintiffs were required "to prove innocence in fact and not merely to present evidence of the government's inability to prove guilt." Ang v. Martin, 118 Wash.App. 553, 558, 76 P.3d 787 (2003). We affirm the Court of Appeals.


¶ 2 Psychiatrist Jessy Ang and his wife Editha jointly owned Evergreen Medical Panel, Inc., a company that provided the Washington State Department of Labor and Industries with independent medical examinations of injured workers. As a result of Dr. Ang's contact with a target of a governmental task force investigating social security fraud, Dr. Ang himself became a person of interest. In February 1994, the task force executed a search warrant on Dr. Ang's office and seized copies of two sets of signed tax returns that reported conflicting amounts of income. The Angs were arrested in April 1996, following the execution of a search warrant at their residence. A year later, the Angs were indicted on 18 criminal counts, including conspiracy to defraud the United States, bank and tax fraud, and filing false statements.

¶ 3 The Angs retained defendants Richard Hansen and Michael G. Martin for flat fees of $225,000 and $100,000, respectively. Attorneys Hansen and Martin engaged in a round of plea negotiations prior to trial, but the Angs rejected the plea bargain. The case proceeded to a jury trial before Judge Tanner in federal district court in December 1997. On the fifth day of trial, just prior to the conclusion of the government's case, Hansen and Martin recommended that the Angs accept another proffered plea, one that the Angs viewed as the least attractive of any agreement previously presented. After Dr. Ang was allegedly told that Mrs. Ang could face sexual assault in prison, the Angs agreed to plead guilty to two of the 18 counts.

¶ 4 The Angs then engaged attorney Monte Hester to review the plea discussions and provide a second opinion. Hester concluded that the government had not met its burden of proof and that the plea agreement provided the Angs with no material benefit. Retaining Hester and Keith A. MacFie to represent them, the Angs successfully moved to withdraw the pleas, which Judge Tanner had never formally accepted. In September 1999, the matter again proceeded to trial before Judge Tanner, with the Angs waiving their right to a jury. Although the government offered another plea bargain prior to trial, one requiring no plea on Dr. Ang's part, a misdemeanor or felony for Mrs. Ang, and a $500,000 fine, the Angs rejected the plea and were acquitted on all 18 counts.

¶ 5 The Angs, along with Evergreen Medical, filed the present legal malpractice action against Hansen and Martin in May 2000 in Pierce County Superior Court. The complaint stated claims for legal malpractice and for violations of the Washington Consumer Protection Act, chapter 19.86 RCW. The trial court denied the defendants' motion for summary judgment, and a jury trial began in November 2001. The trial court instructed the jury that the Angs had to prove by a preponderance of the evidence that they were innocent of the underlying criminal charges. On January 11, 2002, responding to the initial two questions on a special verdict form, the jury found that the Angs had not "proven by a preponderance of the evidence [they were] innocent of all the criminal charges against [them]." Clerk's Papers at 1663-64. As to the verdict form's third question, asking whether "any of the defendants [had been] negligent," the jury made a finding of negligence against Martin only. Id. at 1664.

¶ 6 The plaintiffs appealed, but the Court of Appeals affirmed. This court granted the plaintiffs' petition for review.


¶ 7 (1) Where a legal malpractice suit stems from the representation of clients in a criminal prosecution, must plaintiffs who were acquitted of the criminal charges prove their actual innocence of the crimes, or does their acquittal satisfy the innocence element of their malpractice action?

¶ 8 (2) Did the Angs properly request review of jury instruction 13, which directed the jury to determine the Angs' innocence of the criminal charges but provided no legal definitions of the named crimes, relying instead on the jury's access to the proposed instructions from the criminal trial?


¶ 9 Standard of Review. The Angs contend that the trial court erred in requiring them to prove, in their malpractice suit against former defense counsel, their actual innocence of the underlying criminal charges. They also assert that the court inadequately instructed the jury on the definitions of those charges. As with all questions of law, the issues presented here are reviewed de novo. Kommavongsa v. Haskell, 149 Wash.2d 288, 295, 67 P.3d 1068 (2003).

¶ 10 Essential Elements of Legal Malpractice Claims against Criminal Defense Counsel. A plaintiff claiming negligent representation by an attorney in a civil matter bears the burden of proving four elements by a preponderance of the evidence:

(1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.

Hizey v. Carpenter, 119 Wash.2d 251, 260-61, 830 P.2d 646 (1992); Bowman v. John Doe Two, 104 Wash.2d 181, 185, 704 P.2d 140 (1985) (noting that, in legal malpractice suits, proof of attorney-client relationship is grafted onto customary elements of negligence claim). The fourth element, proximate causation, includes "[c]ause in fact and legal causation." Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985). Cause in fact, or "but for" causation, refers to "the physical connection between an act and an injury." Id. at 778, 698 P.2d 77. In a legal malpractice trial, the "trier of fact will be asked to decide what a reasonable jury or fact finder [in the underlying trial or `trial within the trial'] would have done but for the attorney's negligence." Daugert v. Pappas, 104 Wash.2d 254, 258, 704 P.2d 600 (1985) (emphasis added). Legal causation, however, presents a question of law: "It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact." Hartley, 103 Wash.2d at 779, 698 P.2d 77. To determine whether the cause in fact of a plaintiffs harm should also be deemed the legal cause of that harm, a court may consider, among other things, the public policy implications of holding the defendant liable. Id. In "criminal malpractice" suits,1 two elements related to proximate causation have been added. In Falkner v. Foshaug, 108 Wash.App. 113, 29 P.3d 771 (2001), the Court of Appeals "conclude[d] that postconviction relief is a prerequisite to maintaining [a criminal malpractice] suit and proof of innocence is an additional element a criminal defendant/malpractice plaintiff must prove to prevail at trial in his legal malpractice action." Id. at 124, 29 P.3d 771 (emphasis added); see also id. at 123, 29 P.3d 771 (referring to "an actual innocence requirement"). ¶ 11 The trial court in the present case thus instructed the jury as follows on the elements of the Angs criminal malpractice claims:

To prove their legal malpractice claims, the plaintiffs bear the burden of proving by a preponderance of the evidence each of the following:
First, that there is an attorney-client relationship giving rise to a duty owed by a defendant to a plaintiff;
Second, that plaintiffs have obtained a successful challenge to their convictions based on their attorneys failure to adequately defend them;
Third, that plaintiff was innocent of the crimes charged;
Fourth, that there is an act of omission by a defendant that breached the duty of care of an attorney;
Fifth, that a plaintiff was damaged; and
Sixth, that a breach of duty by a defendant is a proximate cause of a plaintiffs damages....[2]

The Angs assigned error to this instruction, contending that their undisputed acquittal of the criminal charges met not only the additional element of postconviction relief but also the innocence requirement.

¶ 12 By successfully withdrawing their guilty pleas and receiving an acquittal on all charges, the Angs unquestionably received the equivalent of postconviction relief,3 but contrary to their contention, they did not thereby satisfy the Falkner courts innocence requirement. The Angs mistakenly claim that, under Falkner, they were simply required to prove legal innocence, not actual innocence. See Shaw v. State, 861 P.2d 566, 570 n. 3 (Alaska 1993) (Shaw II) (noting that "[l]egal guilt or innocence is that determination made by the trier of fact in a criminal trial," whereas "[a]ctual guilt is intended to refer to a determination in a civil trial, by a preponderance of the evidence, that the defendant engaged in the conduct he was accused of in the...

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