Shaw v. State, Dept. of Admin., Public Defender Agency
Decision Date | 30 August 1991 |
Docket Number | No. S-3720,S-3720 |
Citation | 816 P.2d 1358 |
Parties | John J. SHAW, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, PUBLIC DEFENDER AGENCY, and David C. Backstrom, Appellees. |
Court | Alaska Supreme Court |
Joseph L. Paskvan, Hoppner & Paskvan, P.C., Fairbanks, for appellant.
Randy M. Olsen, Asst. Atty. Gen., Fairbanks, and Douglas B. Baily, Atty. Gen., Juneau, for appellees.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
John Shaw brought suit against David Backstrom and the Public Defender Agency alleging legal malpractice. The superior court granted summary judgment, concluding that the action was barred by the statute of limitations. We reverse and hold that a convicted criminal defendant must obtain post-conviction relief as a precondition to maintaining a legal malpractice claim against his or her attorney.
On March 8, 1973, John Shaw and Toney Powell, both represented by assistant public defender David Backstrom, were convicted of two counts of burglary not in a dwelling and two counts of larceny in a building. Powell had stolen seventeen pairs of pants from a men's store where he and Shaw worked as janitors, and Shaw had allegedly assisted him. Shaw has steadfastly maintained his innocence.
While representing both Shaw and Powell on the burglary and theft charges, Backstrom advised the superior court that a "conflict situation" was arising. However, separate attorneys for the defendants were never provided. The conflict continued through the trial. Powell was willing to testify that Shaw had nothing to do with the theft but defense counsel did not permit him to do so. Further, Backstrom did not advise Shaw that he could take the stand in his own defense, because he wanted to protect Powell. Additionally, several witnesses at trial were not allowed to testify as to statements by Shaw because of the threat to Powell. 1 As noted above, Powell and Shaw were convicted. Sentencing was set for April 10, 1973. Backstrom indicated to Shaw that he would file an appeal, but he did not. Nor did Backstrom contact Shaw, although he had indicated that he would.
Shaw never appeared for sentencing because "he was not going to jail for something he didn't do." He left the jurisdiction and from mid-March of 1973 until September of 1978, Shaw lived in St. Louis, Missouri. The superior court issued a bench warrant for his arrest. Shaw later returned to Alaska and on December 26, 1979, he was stopped in Fairbanks for operating a motor vehicle with a defective tail light. This stop resulted in a routine check, revealing the outstanding warrant for his arrest. Shaw was subsequently charged with failure to appear.
Thereafter, the superior court scheduled a sentencing hearing for Shaw's 1973 convictions. Shaw was originally represented by the Public Defender Agency ("PDA"), but, due to conflict, the superior court released the PDA as his counsel and appointed Daniel Saluri to represent Shaw. After a hearing, the court suspended imposition of a sentence for the 1973 convictions and placed Shaw on probation for two years.
Saluri also represented Shaw in his April 1980 jury trial for failure to appear. After his conviction for failure to appear, the superior court sentenced Shaw to a term of three years with two suspended. An appeal followed. While the appeal was pending, Shaw moved to Barrow, where he was employed by the North Slope Borough until his arrest in 1981 for receiving a stolen handgun and being a felon in possession of a handgun. Again represented by Saluri, Shaw pled nolo contendere to the possession charge, and the larceny charge was dropped.
After Shaw's arrest on the felon in possession charge, his probation officer petitioned to revoke Shaw's probation on the 1973 burglary and larceny convictions. Originally, Saluri represented Shaw on this matter, but later the law firm of Birch, Horton, Bittner, Pestinger and Anderson was appointed to represent Shaw. In early 1984, an attorney with that firm notified Shaw that he intended to argue that Shaw was denied effective assistance of counsel in connection with the 1973 burglary and theft convictions, based on Backstrom's original representation of Shaw.
Later, in 1986, the Office of Public Advocacy was appointed to represent Shaw in a sentence appeal for the felon in possession charge. In its representation of Shaw, the Office of Public Advocacy filed a motion to set aside the 1973 convictions. On August 15, 1986, the superior court set aside Shaw's 1973 convictions because they were constitutionally defective.
Shaw has served time in jail from December 26, 1979 until March 7, 1980 for the 1973 convictions; from the end of December 1981 until September 1982 on the failure to appear charge, and from October 1985 until September 1986 for the felon in possession charge.
Shaw filed a complaint on January 13, 1988, alleging that David Backstrom and the PDA negligently allowed a conflict of interest to lead to his 1973 convictions. Backstrom and the PDA pled the statute of limitations as an affirmative defense. All parties then filed motions for summary judgment as to the statute of limitations issue.
The superior court granted the state's motion for summary judgment. The court held that a plaintiff in a legal malpractice suit involving a criminal matter need not set aside his or her conviction before filing the civil claim. Rather, the plaintiff must only show that "but for the negligence of his attorney, he would have received a more favorable result." Finding that sometime between 1983 and 1984 Shaw learned that he might have had ineffective assistance of counsel in connection with the 1973 proceedings, and applying the two year statute of limitations of AS 09.10.070, the court held that his suit was barred by the statute of limitations. 2
We hold that a convicted criminal defendant must obtain post-conviction relief before pursuing an action for legal malpractice against his or her attorney. 3 Given that obtaining such relief will remain uncertain until actually granted, the statute of limitations for filing legal malpractice claims must be tolled until such relief is granted.
Our review of the case law reveals that other jurisdictions are divided on the issue of requiring post-conviction relief for maintaining a legal malpractice action in a criminal case. However, we agree with those courts which have held that public policy requires some form of post-conviction relief as a prerequisite to the filing of a legal malpractice claim. As the New York Court of Appeals has explained,
This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules.
Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 607, 511 N.E.2d 1126, 1128 (1987) (citations omitted).
The requirement of post-conviction relief promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated later in the legal malpractice action. This is because dispositive post-conviction relief is relevant to the issue of proximate causation. Claudio v. Heller, 119 Misc.2d 432, 463 N.Y.S.2d 155 (Sup.Ct.1983). 4 As Shaw argues, it is also relevant to the issue of damages. See Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo.App.1986). If the defendant was denied post-conviction relief, the legal principle of collateral estoppel would serve to eliminate any frivolous malpractice claim. See Schlumm v. Terrence J. O'Hagan, P.C., 173 Mich.App. 345, 433 N.W.2d 839, 846-47 (1988) ( ); Weiner v. Mitchell, Silberberg & Knupp, 114 Cal.App.3d 39, 170 Cal.Rptr. 533, 538 (1980) ( ); Johnson v. Schmidt, 719 S.W.2d at 826; see 2 R. Mallen & J. Smith, Legal Malpractice § 21.3, at 289 (3d ed. 1989); see also D. Potel, Criminal Malpractice: Threshold Barriers to Recovery Against Negligent Criminal Counsel, 1981 Duke L.J. 542, 551-56 (1981). Thus, by prioritizing post-conviction relief judicial resources will be conserved. Moreover, requiring post-conviction relief as a prerequisite to a legal malpractice action aids in determining whether the statute of limitations bars the action. By adopting the date that post-conviction relief is obtained as the trigger to the statute of limitations, we establish a bright line test which should significantly assist courts in the resolution of statute of limitations issues.
Systemic concerns also support such an approach. Mallen and Smith note "the litigious nature of incarcerated persons who occupy the time of their incarceration by pursuing civil actions against their former attorneys." 2 R. Mallen & J. Smith, supra, at 290. Also of concern is the attorney who, in the course of defending against a malpractice action, might produce privileged or other evidence in his or her defense that might hurt a criminal defendant with a legitimate basis for post-conviction relief. Finally, we note the desirability of allowing a criminal defendant with a valid post-conviction relief claim to pursue that remedy without the distraction of also filing a legal malpractice claim.
The superior court's decision and the state's arguments on appeal caution against this approach. The superior court declined to impose a higher requirement on the criminal defendant than on the civil defendant in a malpractice action. 5 However, ...
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