Falkner v. Foshaug

• Citation: 29 P.3d 771,108 Wash. App. 113
• Decision Date: 27 August 2001
• Docket Number: No. 45326-2-I.,45326-2-I.
• Court: Court of Appeals of Washington
• Parties: Robert FALKNER, Appellant, v. Michael FOSHAUG and Jane Doe Foshaug, husband and wife; Foshaug, McGoran, Sawyer & Aronoff, a Professional Services Corporation, Respondents.

29 P.3d 771

108 Wash. App. 113

Robert FALKNER, Appellant, v. Michael FOSHAUG and Jane Doe Foshaug, husband and wife; Foshaug, McGoran, Sawyer & Aronoff, a Professional Services Corporation, Respondents.

No. 45326-2-I.

Court of Appeals of Washington, Division 1.

August 27, 2001.

Sean Wickens, Law Offices of Sverre O. Staurset PS; Stephen J. Oelrich, Tacoma, for Appellant. Michael B. King, James B. Stoetzer, Lane Powell Spears Lubersky, Seattle, for Respondents.

AGID, C.J.

This case presents an issue of first impression: Whether a defendant whose counsel rendered ineffective assistance in a criminal proceeding may, after entering an Alford plea to a lesser crime on remand, maintain a civil malpractice action against his former counsel. We hold that, under the circumstances presented here, neither estoppel nor public policy bars the malpractice suit. Because Falkner has maintained his innocence throughout the proceedings, including in his Alford plea, and his conviction was reversed based on his attorney's failure to adequately defend him, he may be able to prove at trial that it was the deficient representation, not his illegal acts, that were the proximate cause of the years he spent in prison.

FACTS

In 1993, a jury convicted Robert Falkner of second degree murder for killing his wife, Barbara. Following his conviction, Falkner discharged his attorney, Michael Foshaug, hired his present counsel and moved for a new trial based on ineffective assistance of counsel. The trial court denied Falkner's motion, but on appeal this court ruled that "there is a significant probability that Foshaug's failure to investigate and prepare the defense case" prejudiced Falkner, and that but for the errors, the result of the first trial might have been different.¹ Accordingly, Falkner's conviction was vacated and remanded to the trial court.

In December 1998, the case went to trial for a second time. When the State's first witness violated a pretrial ruling excluding ER 404(b) evidence, the trial court declared a mistrial. Falkner's new counsel then filed a motion to dismiss the charges because of prosecutorial misconduct.² Before the court could rule on the motion, the State offered to reduce the charge to first degree manslaughter and recommend that Falkner be immediately released from custody if he entered an Alford³ plea to the reduced charge. Falkner, who had been in prison for nearly six years, accepted the State's offer but maintained his innocence. The trial judge found a factual foundation for Falkner's plea and accepted it as intelligent and voluntary. The judge sentenced Falkner to 41 months—the high end of the standard range—because he found no basis for an exceptional sentence. Falkner had already served more time in prison than he was sentenced to, so the court entered an order releasing him.

After he entered the Alford plea, Falkner renewed the malpractice lawsuit he had initiated against Foshaug in 1996.⁴ On the theory that Falkner's Alford plea precluded his claims, Foshaug moved for summary judgment. The trial judge granted Foshaug's motion and dismissed Falkner's claim, assuming for the purposes of summary judgment that Foshaug breached the standard of care, but reasoning:

[B]ecause of the public policy cited by the defendants and some of the other evidence in Washington law that would tend to lead to the fact that public policy would be the public policy of Washington, including the slayer statute and the other statutes that would indicate that a person convicted of a crime is not intended to benefit from the crime in any way, and also from the nature of the Alford plea, and the entire concept underlying attorney malpractice actions in general, namely, there has to be a showing of harm that was caused by whatever breach of care there was.

....

I do, however, find that the law in Washington would be that there is a requirement of showing, being able to show innocence or exoneration. Clearly, there is no showing of exoneration that has been made. And that the Alford plea, even though it reserves the statement that the defendant, the plaintiff in this case, was guilty, nevertheless, is based on the concept that Mr. Faulkner [sic] felt he would have been found guilty. So, for a whole variety of reasons, the Court will grant the motion and dismiss this action.

Falkner appeals. He agreed at oral argument with the trial court's ruling that he would have to establish his innocence to prevail in a criminal malpractice action, but asserts that his Alford plea does not preclude him from making such a showing at trial.

DISCUSSION

A legal malpractice claim requires proof of an attorney-client relationship creating a duty of care, breach of that duty, damage, and proximate cause.⁵ In criminal malpractice cases,⁶ the majority of courts who have considered the issue have imposed two additional requirements—a successful postconviction challenge and proof the plaintiff did not commit the underlying crime.⁷ Neither requirement has been considered in Washington in the context of a legal malpractice case. We conclude that both a successful postconviction challenge and proof of innocence are necessary to maintain a criminal malpractice claim.

A brief overview of other jurisdictions' treatment of criminal malpractice claims is instructive. First, many jurisdictions require that a defendant obtain postconviction relief before initiating a malpractice claim, reasoning that it is "inappropriate to treat victims of alleged negligence by defense counsel as having been `harmed,' for the purpose of maintaining a legal malpractice action ... unless they show that their counsel failed to meet the established standards in a way that would make postconviction relief appropriate."⁸ In Peeler v. Hughes & Luce,⁹ the Supreme Court of Texas observed that unless the plaintiff's conviction has been overturned, the plaintiff's illegal conduct, not the negligence of his counsel, is the cause in fact of any injuries flowing from the conviction as a matter of law. In this case, Falkner's successful challenge to the conviction on grounds of ineffective assistance of counsel and the sentence that he claims caused his harm satisfy this requirement.¹⁰

In addition to the postconviction relief requirement, many jurisdictions require proof that the criminal defendant/malpractice plaintiff is innocent of the underlying criminal charges as an additional element of the civil malpractice claim.¹¹ "Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss."¹² To satisfy the innocence requirement, the plaintiff must prove at a civil trial that he or she is innocent of the charged crime. Although the parties' briefs are not entirely clear, they seem to indicate that they, like the trial judge, endorse this position, but disagree about whether a criminal malpractice plaintiff who has entered an Alford plea should be precluded, by estoppel or some other doctrine, from making this showing.

Falkner argues that because his Alford plea does not admit guilt of the underlying charges, he should be permitted to prove his innocence at trial, while Foshaug asserts that Falkner's Alford plea forever prevents him from establishing his innocence. But most of the cases on which Foshaug relies hold that a criminal defendant who has entered an undisturbed, standard guilty plea cannot later allege in a malpractice action that he was innocent. In this case we must decide whether an Alford plea has the same effect as a standard guilty plea.

First, some background on the innocence requirement will be helpful. The cases from other jurisdictions "treat a defendant attorney's negligence as not [being] the cause of the former client's injury as a matter of law, unless the plaintiff former client proves that he did not commit the crime.'"¹³ The public policy behind this requirement is that "regardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy,"¹⁴ and thus, cannot be the basis for civil damages.

Relying either on collateral estoppel or public policy considerations, jurisdictions adopting the innocence requirement also hold that defendants who have voluntarily entered a standard guilty plea cannot later allege their innocence in a civil malpractice action.¹⁵ In O'Blennis v. Adolf,¹⁶ a defendant convicted of assault with intent to kill succeeded in vacating his conviction in postconviction proceedings, but eventually pled guilty to the original charge while represented by different counsel. The court held the defendant was collaterally estopped from suing for legal malpractice because innocence was an indispensable element of his cause of action and his guilty plea was knowing and voluntary.¹⁷ In Carmel v. Lunney,¹⁸ the New York Court of Appeals reached the same conclusion, but did not rely on collateral estoppel. That court held that because the plaintiff entered a guilty plea to a misdemeanor violation, "he can neither assert, nor establish, his innocence" and "has thus failed to state a cause of action, and his claim was properly dismissed."¹⁹ It further noted that as "long as the determination of his guilt remains undisturbed, no cause of action will lie."²⁰ While we agree that a knowing and voluntary guilty plea in a criminal trial precludes a defendant from alleging his innocence in a subsequent legal malpractice case, that does not answer the more difficult question whether entry of an Alford plea has the same effect. Citing In re Discipline of McLendon,²¹ Foshaug argues that "an Alford plea is conclusive proof of guilt of the criminal offense charged...."²² In that case, the Supreme Court considered whether due process requires that a lawyer subject to a disciplinary hearing be...