Paulsen v. Cochran

• Decision Date: 14 March 2005
• Docket Number: No. 1-04-1325.,1-04-1325.
• Citation: 292 Ill.Dec. 385,356 Ill. App.3d 354,826 N.E.2d 526
• Parties: Michael PAULSEN, Plaintiff-Appellant, v. Johnnie COCHRAN, The Cochran Firm, James D. Montgomery and Anthony Schuman, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

826 N.E.2d 526

356 Ill. App.3d 354

292 Ill.Dec. 385

Michael PAULSEN, Plaintiff-Appellant, v. Johnnie COCHRAN, The Cochran Firm, James D. Montgomery and Anthony Schuman, Defendants-Appellees.

No. 1-04-1325.

Appellate Court of Illinois, First District, First Division.

March 14, 2005.

Robert R. Tepper, Chicago, for Appellant.

Melvin L. Brooks of Cochran, Cherry, Givens, Smith & Montgomery, LLC, Chicago, for Appellees Johnnie Cochran, the Cochran Firm and James D. Montgomery.

Michael L. Resis, Timothy J. Fagan and John D. LaBarbera of O'Hagan, Smith & Amundsen, LLC, Chicago, for Appellee Anthony Schuman.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, and Erica M. Landsberg, Special Assistant Corporation Counsel, of counsel), for Appellee City of Chicago.

Presiding Justice CAHILL delivered the opinion of the court:

Plaintiff Michael Paulsen appeals the dismissal of his legal malpractice action against defendants Johnnie Cochran and James D. Montgomery of the Cochran law firm, and Anthony Schuman (also written Schumann), an attorney who is not with the Cochran firm. The complaint arose from the representation and sentence Paulsen received when he pled guilty to a drug offense in Arizona. The trial court dismissed Paulsen's complaint on defendants' motion under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2002)). The trial court found that Paulsen had failed to plead and prove "actual innocence" as is required for a convicted person to state a cause of action for legal malpractice against his former criminal defense attorney.

Paulsen appeals. His primary question is whether the actual innocence rule applies when the alleged malpractice resulted in an unfair penalty, not an improper conviction. We affirm. The record shows that Paulsen, a Chicago resident, was arrested and charged in Arizona in May 2002 with conspiracy to transport marijuana, a class 2 felony. Paulsen sought representation through the Chicago law office of the Cochran firm, where Montgomery is the managing attorney. The Cochran firm referred Paulsen to an attorney outside the firm, Anthony Schuman. Paulsen claims Schuman "subcontracted" the defense with Joel Schwartz, a Missouri attorney.

Of record is a plea agreement dated August 30, 2002, and signed by Paulsen, Schwartz and Anna M. Atencio, the prosecutor of Navajo County, Arizona. The agreement stated that Paulsen agreed to plead guilty under the following sections of the Arizona Criminal Code (Ariz.Rev.Stat. § 13-101, et seq. (2002)): section 13-1003 (conspiracy); section 13-3405(A)(4) (the knowing transport for sale of 2 pounds or more of marijuana is a class 2 felony); section 13-3405(D) (court shall order a person convicted under section 13-3405(A)(4) to pay a fine of not less than $750 or 3 times the value of the marijuana as determined by the court, whichever is greater); section 13-701 (the term of imprisonment for a class 2 felony is generally 5 years); section 13-702 (mitigating and aggravating factors generally can alter the sentencing range for a class 2 felony to as few as 4 or as many as 10 years); section 13-702.01 (the minimum term may be reduced to 3 years if 2 or more substantial mitigating factors exist); section 13-801 (a fine for a felony shall be not more than $150,000).

Paulsen's plea agreement stated, in relevant part:

"THE STATE OF ARIZONA and the Defendant agree to the following disposition of this case:

PLEA: The Defendant agrees to plead guilty to:

* * * CONSPIRACY TO TRANSPORT MARIJUANA, a class 2 felony, occurring on May 25, 2002, [citations].

* * *

1. The parties stipulate to the following terms * * *:

The defendant shall be placed on probation, terms and conditions at the discretion of the Court, but to include statutory requirements, and 1 year jail, work release at the discretion of probation.

2. The crime of CONSPIRACY TO TRANSPORT MARIJUANA, A CLASS 2 FELONY, carries a presumptive sentence of 5 years imprisonment * * *; a minimum sentence of 4 years (3 if trial court makes exceptional circumstances finding); and a maximum sentence of 10 years (12.5 years if trial court makes exceptional circumstances finding). Probation is available for 7 years. As a condition of probation the court can order the Defendant to serve up to [1] year in the Navajo County jail. * * * The maximum fine that can be imposed is $150,000.00 plus 77% surcharge. * * *

SPECIAL CONDITIONS REGARDING SENTENCING:

PURSUANT TO A.R.S. § 13-3405, THE DEFENDANT MUST PAY A FINE OF THE GREATER OF $750.00 OR THREE TIMES THE VALUE OF THE DRUGS SEIZED.

* * *

6. Unless this plea is rejected by the court or withdrawn by either party, the Defendant hereby waives and gives up any and all motions, defenses, objections or requests that he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement."

The agreement was signed by Paulsen and the numbered paragraphs were initialed by him. These included statements that Paulsen had discussed the case and his rights with his lawyer and that he signed the agreement voluntarily.

Paulsen was sentenced to one year in jail, 840 hours of community service and $88,500, the sum of a $50,000 fine plus a $38,500 surcharge.

Paulsen subsequently filed a petition for postconviction relief. The petition is not of record, but prosecutor Atencio's response to the petition is. Atencio acknowledged that, in his postconviction petition, Paulsen sought resentencing as to the fine, but he did not withdraw the guilty plea. Atencio conceded that the fine in the plea agreement was miscalculated. The exact nature and amount of the miscalculations are not clear in the record, but the pleadings show that the $38,500 surcharge should not have been assessed, leaving a fine of $50,000.

Paulsen filed a malpractice complaint against defendants in September 2003. He alleged that Schuman breached his duty by "subcontracting" the criminal defense work to Schwartz, who was not licensed in Arizona. Paulsen claimed he paid $36,000 to Schuman, a portion of which he alleges went to Cochran, the Cochran firm and its managing attorney Montgomery. Paulsen argued that the fee arrangement makes Cochran, the Cochran firm and Montgomery responsible for the acts and omissions of Schuman.

Paulsen alleged in his complaint that Schuman erred by: (1) failing to contest the forfeiture of $6,000 in money and personal property in Paulsen's possession when he was arrested; and (2) including an improper fine in the plea agreement as shown by the fact that the court reduced the fine; and that (3) with proper representation, he would have received only probation. Paulsen sought at least $50,000 in damages.

The trial court granted defendants' motion to dismiss Paulsen's complaint under sections 2-615 (involuntary dismissal because the complaint is insufficient at law) and 2-619 (involuntary dismissal because of defects in or defenses to the complaint) of the Code (735 ILCS 5/2-615, 2-619 (West 2002)).

Paulsen appeals, claiming he should be compensated by defendants because the plea agreement caused him to "[overpay] his debt to society" and receive an "excessively harsh" sentence. Paulsen contends that neither Illinois law nor public policy requires proof of a criminal defendant's actual innocence to state a cause of action for legal malpractice where, as here, the malpractice claim is grounded on a claim other than a wrongful conviction.

Defendants argue that under Illinois law, a showing of actual innocence is required for a plaintiff to state a cause of action for legal malpractice against his former criminal defense attorney, citing Kramer v. Dirksen, 296 Ill.App.3d 819, 822, 231 Ill.Dec. 169, 695 N.E.2d 1288 (1998), Moore v. Owens, 298 Ill.App.3d 672, 674, 232 Ill.Dec. 616, 698 N.E.2d 707 (1998), and Levine v. Kling, 123 F.3d 580, 582 (7th Cir.1997). They argue that the exception to the actual innocence rule in Illinois is the one made in Morris v. Margulis, 307 Ill.App.3d 1024, 1039, 241 Ill. Dec. 138, 718 N.E.2d 709 (1999) rev'd on other grounds, 197 Ill.2d 28, 257 Ill.Dec. 656, 754 N.E.2d 314 (2001). There, a defense attorney acted intentionally when he betrayed the criminal client he was defending. As defendants point out, Paulsen does not claim a deliberate betrayal by his attorneys. We review de novo motions to dismiss under sections 2-615 and 2-619 of the Code. Bunting v. Progressive Corp., 348 Ill.App.3d 575, 580, 284 Ill.Dec. 103, 809 N.E.2d 225 (2004).

The elements of a legal malpractice claim in Illinois are: (1) the existence of an attorney/client relationship; (2) a duty arising from that relationship; (3) a breach of that duty on the part of defendant/counsel; (4) proximate cause; and (5) damages. Claire Associates v. Pontikes, 151 Ill.App.3d 116, 122, 104 Ill.Dec. 526, 502 N.E.2d 1186 (1986). An additional element is required of a criminal defendant who must prove his innocence before he may recover from his criminal defense attorney's malpractice. Kramer, 296 Ill. App.3d 819, 231 Ill.Dec. 169, 695 N.E.2d 1288.

The actual innocence requirement for former criminal defendants who become malpractice plaintiffs has been applied in Illinois at least since 1998. The court in Kramer held that a legal malpractice complaint was properly dismissed under section 2-619 of the Code (735 ILCS 5/2-619 (West 1996)) where the plaintiff could not prove his actual innocence. Kramer, 296 Ill.App.3d at 821, 231 Ill.Dec. 169, 695 N.E.2d 1288. The court explained that for policy reasons a criminal defendant must meet a different standard than a civil litigant for stating a claim for legal malpractice. Kramer, 296 Ill.App.3d at 821, 231 Ill.Dec. 169, 695 N.E.2d 1288. This is to eliminate the possibility that someone who has been...