Rantz v. Kaufman, 04SA273.

CourtSupreme Court of Colorado
Citation109 P.3d 132
Docket NumberNo. 04SA273.,04SA273.
PartiesIn re Geoffrey RANTZ, Plaintiff, v. Ann P. KAUFMAN and Rick B. Levinson, Defendants.
Decision Date28 February 2005

McConnell, Siderius, Fleischner, Houghtaling & Craigmile, L.L.C., Michael T. McConnell, Meghan E. Pound, Englewood, for Petitioners.

Edward J. LaBarre, Colorado Springs, for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

In this original proceeding, two attorneys, Ann Kaufman and Rick Levinson, ask us to determine whether a former client, whom they had represented in a criminal case, must obtain postconviction relief before filing a malpractice claim against them. We decide that obtaining postconviction relief is not a prerequisite to filing suit. If postconviction relief has been sought and denied on the merits, however, the court's denial of relief may have a preclusive effect on the malpractice suit under appropriate circumstances. Here, the order of the postconviction court denying Geoffrey Rantz's Crim. P. 35(c) motion is pending on appeal and is not final for purposes of issue preclusion. Accordingly, the findings of the postconviction court do not presently preclude Rantz from making a legal malpractice claim against Kaufman and Levinson. Consequently, the trial court properly refused to dismiss his suit and acted within its discretion when it stayed the case pending resolution of the appeal.

II. Facts and Procedural History

Rantz was convicted of sexually assaulting two boys and sentenced to sixty-six years in the Department of Corrections. Kaufman and Levinson were retained as counsel by Rantz and represented him at trial.

Following his conviction, Rantz obtained new counsel and filed a Crim. P. 35(c) motion for postconviction relief and a motion for a new trial based on ineffective assistance of counsel. Rantz claimed he had wanted a particular witness to be called at trial to corroborate his version of events and to rebut the testimony of the alleged victims. Contrary to his alleged desires, Kaufman and Levinson did not call the witness. The crux of Rantz's Crim. P. 35(c) motion was that he was deprived of his right to effective assistance of counsel because Kaufman refused to call the witness due to a conflict of interest. According to Rantz, the alleged conflict of interest arose because the witness, who was a minor, had contacted Kaufman while he was a runaway, but she had not reported this contact to the authorities, and in fact had falsely represented to the court that no contact had occurred. Rantz asserted that Kaufman prevented the witness from testifying in order to conceal her contact with him from the court and to protect herself from being implicated in federal kidnapping charges. In his motion, Rantz also contended that he would have testified himself, had he known the witness was not going to be called. After a hearing, the postconviction court denied Rantz's Crim. P. 35(c) motion, and made extensive findings of fact. Based on the record and testimony presented at the hearing, the court found that (1) both attorneys were "very well prepared and very thorough throughout their representation of the defendant;" (2) Kaufman was not acting under any conflict of interest; (3) neither attorney was ineffective; (4) the decision not to call the witness was a justified strategy decision; and (5) Rantz voluntarily and knowingly waived his right to testify. Accordingly, the court concluded that Rantz had failed to prove his counsel's performance was constitutionally deficient. Rantz appealed the court's order to the court of appeals and the appeal is presently pending.

Prior to the hearing on his Crim. P. 35(c) motion, Rantz filed a malpractice suit against Kaufman and Levinson alleging negligence, breach of fiduciary duty, deceit, and outrageous conduct. In his complaint, Rantz repeated many of the allegations from his motion for postconviction relief, claiming that Kaufman and Levinson failed to withdraw from representing Rantz despite a conflict of interest, failed to present testimony from a witness due to this conflict, and that these failures ultimately led to Rantz's conviction.

Kaufman and Levinson moved to dismiss Rantz's malpractice complaint because Rantz failed to obtain postconviction relief and therefore could not state a claim. The district court denied the motion to dismiss, reasoning that our recent decision in Morrison v. Goff, 91 P.3d 1050 (Colo.2004), "would seem to indicate that a person does not have to first obtain post conviction relief as a precondition of filing." The court further stated that the postconviction court's denial on the merits of a claim for ineffective assistance of counsel "would be binding in a subsequent civil malpractice." However, the court declined to dismiss Rantz's complaint on those grounds, indicating that the postconviction court's determination of Rantz's Crim. P. 35(c) motion may not be final. Upon motion from Kaufman and Levinson, the court stayed the malpractice proceedings until Rantz either obtained or was finally denied postconviction relief.

Subsequently, Kaufman and Levinson petitioned this court for relief pursuant to C.A.R. 21. We issued a rule to show cause why Kaufman and Levinson's motion to dismiss Rantz's malpractice suit should not be granted. Because we find that postconviction relief is not a prerequisite to filing, and that lack of a final judgment on the Crim. P. 35(c) motion prevents issue preclusion from applying to Rantz's malpractice claim, we now discharge that rule. The trial court properly applied Morrison when it stayed the malpractice case pending resolution of the Crim. P. 35(c) case.

III. Analysis

Kaufman and Levinson invite this court to find either (1) that a former client must obtain postconviction relief in order to make out a legal malpractice claim against his or her criminal defense attorney; or (2) that the denial of Rantz's Crim. P. 35(c) motion is a final judgment for purposes of precluding Rantz from pursuing his malpractice claim.

We reject both arguments. Under the "two-track" system adopted in Morrison, achieving postconviction relief is not a precondition to filing a legal malpractice claim against a criminal defense attorney. Denial of a Crim. P. 35(c) motion can preclude relitigation of certain factual or legal issues decided in the criminal proceeding if all the elements for issue preclusion are met. One of the elements of issue preclusion, however, is that there must be a final judgment on the merits in the prior proceeding. Because the order denying Rantz postconviction relief is still pending on appeal, it does not constitute a final judgment for purposes of issue preclusion.

A. Prior Postconviction Relief

To prevail on a claim for legal malpractice in Colorado, the plaintiff must show that (1) the attorney owed a duty of care to the plaintiff, (2) the attorney breached that duty, and (3) the attorney proximately caused damage to the plaintiff. Stone v. Satriana, 41 P.3d 705, 712 (Colo.2002). Kaufman and Levinson urge us to find that, in cases where a former client is suing his or her criminal defense attorney for malpractice, the client is required to show that he or she has obtained postconviction relief as an additional element.

The idea that a former client must obtain postconviction relief before bringing a malpractice suit against his or her criminal defense attorney appears to have had its genesis in a 1974 law review article. Otto M. Kaus & Ronald E. Mallen, The Misguiding Hand of Counsel — Reflections on "Criminal Malpractice", 21 U.C.L.A.L.Rev. 1191 (1974); see Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 866 (N.M.App.1997)

. Since then, many jurisdictions that have considered the question have adopted some form of postconviction relief as a prerequisite to maintaining the malpractice action. See, e.g., Shaw v. State, 816 P.2d 1358 (Alaska 1991); Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670 (2001); Steele v. Kehoe, 747 So.2d 931 (Fla.1999); Levine v. Kling, 123 F.3d 580 (7th Cir.1997) (applying Illinois law); Trobaugh v. Sondag, 668 N.W.2d 577 (Iowa 2003); Canaan v. Bartee, 276 Kan. 116, 72 P.3d 911 (2003); Noske v. Friedberg, 670 N.W.2d 740 (Minn.2003); Morgano v. Smith, 110 Nev. 1025, 879 P.2d 735 (1994); Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556 (1993); Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993); Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex.1995); Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797 (1997). The requirement is sometimes referred to as the "exoneration rule." See, e.g., Canaan, 72 P.3d at 914; Gibson, 58 S.W.3d at 109.

Several other jurisdictions have directly or impliedly declined to make prior postconviction relief a requirement for suit, although some insist on an affirmative demonstration of innocence of the underlying crime from the former client. See, e.g., Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983)

; McCord v. Bailey, 636 F.2d 606 (D.C.1980); Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783 (1991) (former client has burden of proving innocence of underlying charge); Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994); Jepson v. Stubbs, 555 S.W.2d 307 (Mo.1977); Ereth v. Cascade County, 318 Mont. 355, 81 P.3d 463 (2003); Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000) (requires establishment of "actual innocence"); Mahoney v. Shaheen, Cappiello, Stein & Gordon, 143 N.H. 491, 727 A.2d 996 (1999) (criminal malpractice action will fail if claimant does not allege and prove actual innocence); Duncan, 936 P.2d at 865 (N.M.App.1997); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989). Most jurisdictions cite various public policy reasons to justify their decision either to adopt or reject the exoneration rule.

Those jurisdictions that adopt the exoneration...

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