IN THE SUPREME COURT OF IOWA No. 19–1558
Submitted December 16, 2020—Filed February 26, 2021
DONALD CLARK,
Appellee,
vs.
STATE OF IOWA,
Appellant.
Appeal from the Iowa District Court for Johnson County,
Lars Anderson, Judge.
The defendant brings an interlocutory appeal from the district
court’s grant of partial summary judgment on the plaintiff’s legal
malpractice claim. REVERSED AND REMANDED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Solicitor
General, Noah Goerlitz and David M. Ranscht, Assistant Attorneys
General, for appellant.
Frank J. Nidey and Clemons A. Erdahl of Nidey, Erdahl, Meier &
Araguas, P.L.C., Cedar Rapids, and Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellee. 2
OXLEY, Justice.
A criminal defendant who successfully overturns his conviction
based on ineffective assistance of counsel may bring a legal malpractice
action against his former attorney. Can he then use that successful action
to stop his former attorney from claiming he did not breach any duties in
the subsequent malpractice action? That question turns on application of
the doctrine of issue preclusion, which allows a party to rely on an issue
decided in one proceeding to affirmatively establish the same issue in a
later proceeding, as long as the party against whom the doctrine is used had a full and fair opportunity to litigate the issue in the first proceeding.
Here, a criminal defendant, represented at trial by a state public defender,
brought a malpractice action against the State as the public defender’s
employer. He now seeks to invoke issue preclusion based on his prior
successful ineffective assistance claims to establish the breach element of
his malpractice claim as a matter of law. We must decide whether the fact
that the State was the named defendant in both actions—defending the
State’s conviction in the postconviction-relief proceeding and defending its
public defender employee in this malpractice action—brings issue
preclusion into play.
For the reasons that follow, we conclude it does not.
I. Factual Background and Proceedings.
In 2010, Donald Clark was convicted of second-degree sexual abuse
and received an indeterminate twenty-five-year sentence. State v. Clark,
814 N.W.2d 551, 560 (Iowa 2012). The alleged abuse took place during
the 2003–2004 school year when Clark was a counselor at an elementary
school and worked with a fifth-grade student who accused Clark of inappropriately touching him during a counseling session in Clark’s school
office. Id. at 554. There were no witnesses to the alleged abuse and no 3
physical evidence, so the trial came down to a “he said, he said” credibility
contest. Clark’s conviction was affirmed on appeal, and we left Clark’s
ineffective-assistance-of-counsel claims for further development in
postconviction-relief (PCR) proceedings. Id. at 560, 567.
Clark immediately filed a PCR action in August 2012, seeking a new
trial based on two grounds: ineffective assistance of counsel and newly
discovered evidence. State public defender John Robertson represented
Clark in his criminal trial.1 A key point of contention during the criminal
trial involved the line of sight into, and the layout of, Clark’s school office. Clark claimed Robertson failed to investigate the scene or offer
photographs of the office into evidence to rebut the misleading pictures
offered by the prosecution. Clark also claimed Robertson failed to inform
him about depositions of key witnesses who testified about the school
layout, preventing Clark from assisting in his defense. Without this
information, Robertson was unable to effectively rebut the prosecution’s
evidence. Finally, Clark argued Robertson failed to present character
witnesses after other “bad act” evidence about Clark was admitted at trial.
To support his claim that newly discovered evidence also entitled
him to a new trial, Clark offered the student’s subsequent testimony in a
parallel civil case the student and his family brought against Clark. The
student testified he had not been fully truthful in the criminal case and
described other occasions when Clark allegedly touched him
inappropriately. Clark presented evidence that questioned whether the
new allegations could have occurred as the student testified, which,
coupled with the student’s admission he was not fully truthful, called into
doubt the student’s credibility.
1Mr. Robertson unexpectedly passed away in April 2013 during the PCR proceeding. 4
The PCR court found Clark was entitled to a new trial based on both
the ineffective-assistance claims and the newly discovered evidence. The
State did not appeal the PCR ruling and declined to prosecute Clark a
second time. The charges against Clark were dismissed in July 2016, over
six years after he was convicted.
Following his successful PCR action, Clark brought a legal
malpractice action to recover money damages. Because Robertson was a
state employee in the public defender’s office, Clark filed the malpractice
action against the State of Iowa. See Iowa Code § 669.5(2)(a) (2019). Clark filed an offensive motion for partial summary judgment, asserting that the
breach-of-duty element of his malpractice claim was conclusively
established by the PCR ruling under the doctrine of issue preclusion.
In resistance, the State argued the standard used to judge counsel’s
conduct in the ineffective assistance of counsel context is different than
the standard used in the malpractice context. The State then argued even
if the elements of issue preclusion were met, there was a lack of mutuality
between the two cases because, even though the State was the named
defendant in both actions, it served in significantly different capacities.
Finally, the State argued even if the State could be considered the same
party in both cases, other circumstances counseled against using issue
preclusion in this context.
Initially, the district court denied Clark’s motion for partial summary
judgment on the basis that the standard applied to counsel’s performance
under a Strickland2 ineffective-assistance-of-counsel analysis is different
than the standard of care required to support a legal malpractice claim.
The court therefore did not address the State’s other arguments. On
2Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 5
reconsideration, the district court changed course, concluding the
standards for an attorney’s conduct are sufficiently similar in both
contexts to amount to the same issue under the first prong of issue
preclusion. Because the State did not contest the remaining issue
preclusion elements, the district court found all elements satisfied.
The district court then addressed, and rejected, the State’s
argument that its status as defendant in the malpractice action was
different from its status as defendant in the PCR action such that there
was a lack of mutuality of parties. The district court concluded that the State, through the Johnson County Attorney’s office, controlled the
strategy in defending against the ineffective-assistance claims in the PCR
action, and the State, through the attorney general’s office, likewise
controls the strategy in defending its employee’s actions in this
malpractice action. The district court concluded “the State of Iowa as
named in the postconviction proceeding and the State of Iowa as named
in the legal malpractice proceeding presently are identical.”
The district court granted Clark’s motion for partial summary
judgment, finding the element of breach of duty for Clark’s malpractice
claim was conclusively established by the prior PCR ruling and leaving
causation and damages to be decided by the jury.
We granted the State’s application for interlocutory appeal and
retained the appeal.
II. Standard of Review.
We review the district court’s grant of partial summary judgment for
errors at law. Emps. Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22
(Iowa 2012). While we have reviewed application of issue preclusion in a particular case for an abuse of the district court’s discretion, see Fischer
v. City of Sioux City, 654 N.W.2d 544, 550 (Iowa 2002) (district court 6
abused its discretion in allowing party to rely on issue preclusion not
pleaded and first raised one week before trial); Casey v. Koos, 323 N.W.2d
193, 197 (Iowa 1982) (district court should decide in the first instance
whether to apply offensive issue preclusion following completion of appeal
process for prior proceeding), the determination of “[w]hether the elements
of issue preclusion are satisfied is a question of law,” Emps. Mut. Cas. Co.,
815 N.W.2d at 22 (quoting Grant v. Iowa Dep’t of Human Servs., 722
N.W.2d 169, 173 (Iowa 2006)); see also Grant, 722 N.W.2d at 173 (“[W]e
are not bound by the agency’s decision [on whether issue preclusion elements were met], and may substitute our own interpretation of the law
for the agency’s.”).
Here, the State challenges the district court’s legal conclusions that
the elements of issue preclusion were met and that mutuality was
satisfied, so our review is for legal error. See Comes v. Microsoft Corp., 709
N.W.2d 114, 117 (Iowa 2006) (reviewing for legal error a challenge to
district court’s application of incorrect legal standard related to issue
preclusion); cf. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017)
(holding a district court necessarily abuses its discretion if it misapplies
the law).
III. Analysis.
To recover for legal malpractice, Clark must prove:
(1) the existence of an attorney–client relationship between the defendant and plaintiff giving rise to a duty; (2) the attorney, by either an act or a failure to act, breached that duty; (3) this breach proximately caused injury to the plaintiff; and (4) the plaintiff sustained actual injury, loss, or damage.
Kraklio v. Simmons, 909 N.W.2d 427, 434 (Iowa 2018) (quoting Huber v.
Watson, 568 N.W.2d 787, 790 (Iowa 1997)). In Iowa, a criminal defendant is not required to prove actual innocence as a prerequisite to a legal 7
malpractice claim against his former criminal attorney.3 See Barker v.
Capotosto, 875 N.W.2d 157, 168 (Iowa 2016). The defendant is, however,
required to obtain judicial relief related to the purported malpractice before
pursuing a malpractice claim. See Kraklio, 909 N.W.2d at 439 (allowing
defendant to bring malpractice action based on ineffective assistance
related to sentencing proceedings only after first showing “relief from the
duration of his supervised probation”); Trobaugh v. Sondag, 668 N.W.2d
577, 583 (Iowa 2003) (adopting “approach that requires a defendant to
achieve relief from a conviction before advancing a legal malpractice action” premised on conduct that resulted in an avoidable conviction).
When the defendant is represented by a court-appointed attorney, as here,
this prerequisite is statutory. See Iowa Code § 815.10(6).4 Having met
this prerequisite, Clark brought the instant legal malpractice action.
Clark seeks to short-circuit the malpractice trial by using his
successful ineffective-assistance claim to establish the duty and breach
elements of the malpractice claim as a matter of law through issue
preclusion (or collateral estoppel). Issue preclusion prevents parties from
relitigating issues already raised and resolved in a prior action. Emps.
Mut. Cas. Co., 815 N.W.2d at 22.
The doctrine “serves a dual purpose: to protect litigants from ‘the “vexation of relitigating identical issues with identical
3Amalpractice claim related to representation of a client in a criminal matter is sometimes referred to as a “criminal malpractice” claim. See Barker v. Capotosto, 875 N.W.2d 157, 161 n.2 (Iowa 2016). 4Section 815.10(6) states, An attorney appointed under this section is not liable to a person represented by the attorney for damages as a result of a conviction in a criminal case unless the court determines in a postconviction proceeding or on direct appeal that the person’s conviction resulted from ineffective assistance of counsel, and the ineffective assistance of counsel is the proximate cause of the damage. Iowa Code § 815.10(6). 8 parties or those persons with a significant connected interest to the prior litigation,” ’ and to further ‘the interest of judicial economy and efficiency by preventing unnecessary litigation.’ ”
Id. (quoting Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 571–72
(Iowa 2006)). Issue preclusion also promotes public faith in the judicial
system by avoiding “two authoritative but conflicting answers being given
to the very same question.” Id. (quoting Grant, 722 N.W.2d at 178).
Issue preclusion may be used defensively as a shield by “a stranger
to the judgment, ordinarily the defendant in the second action, . . . [to]
conclusively establish[] in his favor an issue which he must prove as an
element of his defense.” Hunter v. City of Des Moines, 300 N.W.2d 121,
123 (Iowa 1981) (quoting Goolsby v. Derby, 189 N.W.2d 909, 913 (Iowa
1971)). It may also “be used offensively as a sword by a new plaintiff
against a defendant who was a party to the former litigation.” Dettmann
v. Kruckenberg, 613 N.W.2d 238, 244 (Iowa 2000) (en banc); see also Emps.
Mut. Cas. Co., 815 N.W.2d at 22 (recognizing same use of offensive issue
preclusion).
While we no longer require mutuality between the parties, we
generally restrict its use only against a party, or one in privity with a party, to the prior suit.5 See Hunter, 300 N.W.2d at 126 (“[T]he absence of
5Historically, issue preclusion was limited to subsequent actions between the
same parties, or mutuality of estoppel. See Hunter, 300 N.W.2d at 123; see also Harris v. Jones, 471 N.W.2d 818, 820 (Iowa 1991) (“This doctrine [of mutuality] held that neither party to an action could use a prior judgment to estop the other unless both were bound by the judgment.”). While we have said we no longer require mutuality or privity, that just means we have come to allow strangers to the prior proceeding to use issue preclusion against a party, or one in privity with that party, who has already litigated the same issue in a prior proceeding. See Harris, 471 N.W.2d at 820 (recognizing the mutuality requirement “failed to recognize ‘the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost’ ” (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S. Ct. 645, 649 (1979))). We nonetheless remain mindful “that it is a due process violation for a litigant to be bound by a judgment when the litigant was not a party or a privy in the first action and therefore never had an opportunity to be heard.” Id. “Thus, . . . issue preclusion should be applied 9
mutuality will no longer invariably bar the offensive application of issue
preclusion . . . if it is determined that the party sought to be precluded was
afforded a full and fair opportunity to litigate the issue in the action relied
upon . . . .” (emphasis added)); see also Soults Farms, Inc. v. Schafer, 797
N.W.2d 92, 104 (Iowa 2011) (“When used in an offensive manner, the
plaintiff in the second action relies upon a former judgment against the
defendant to establish an element of his or her claim . . . irrespective of
the parties’ mutuality or privity.” (emphasis added) (citation omitted)). As
with defensive use of issue preclusion, privity for these purposes exists when
the party against whom issue preclusion is invoked was “so connected in interest with one of the parties in the former action as to have had a full and fair opportunity to litigate the relevant claim or issue and be properly bound by its resolution.”
Dettmann, 613 N.W.2d at 244 (quoting Brown v. Kassouf, 558 N.W.2d 161,
163 (Iowa 1997)).
A party must establish four elements to employ issue preclusion:
(1) the issue concluded must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.6
only when the party against whom preclusion is asserted had a full and fair opportunity to litigate.” Id. 6The State argues under this last element that the ineffective-assistance claim was
not “necessary and essential” to the PCR court’s order because it also granted a new trial based on newly discovered evidence. But the State failed to make this argument below. As the district court noted in its order on reconsideration, “the remaining three factors . . . were not controverted by the State.” Contrary to the State’s assertion that the district court implicitly considered and rejected the argument when it found the remaining elements met, the district court could not have implicitly rejected an argument the State never made. The issue was therefore not even minimally preserved, cf. 33 Carpenters Constr., Inc. v. State Farm Life & Cas. Co., 939 N.W.2d 69, 76 (Iowa 2020) (“assum[ing] without deciding that error was minimally preserved” where district court impliedly 10
Hunter, 300 N.W.2d at 123. Even if the defendant was a party to the prior
litigation, offensive use of issue preclusion is applied “more restrictively
and cautiously” than when it is used defensively because there are less
reasons justifying its offensive use than its defensive use. Winger v. CM
Holdings, L.L.C., 881 N.W.2d 433, 451 (Iowa 2016) (quoting Gardner v.
Hartford Ins. Accident & Indem. Co., 659 N.W.2d 198, 203 (Iowa 2003));
see also Hunter, 300 N.W.2d at 124 (explaining “offensive use of collateral
estoppel does not promote judicial economy in the same manner as
defensive use does,” and offensive use may be unfair to a defendant who lacked the same incentive to litigate the first action or who may be afforded
more procedural opportunities in a second proceeding that were
unavailable in the first, which may cause a different outcome (quoting
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S. Ct. 645, 650
(1979))). We therefore consider two additional factors before issue
preclusion can be used offensively:
(1) whether the opposing party in the earlier action was afforded a full and fair opportunity to litigate the issues . . . , and (2) whether any other circumstances are present that would justify granting the party resisting issue preclusion occasion to relitigate the issues.
Winger, 881 N.W.2d at 451 (quoting Emps. Mut. Cas. Co., 815 N.W.2d at 22) (holding plaintiff in wrongful death action against landlord could not
use city housing board’s citation against landlord regarding railing height
to establish landlord’s negligence through offensive issue preclusion
because landlord lacked sufficient incentive to challenge city finding,
which only subjected landlord to $1090 fine).
rejected argument made by party), and we do not address it, see State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020). 11
Here, the district court concluded that the same parties—Clark and
the State—were involved in both the ineffective-assistance claim and the
legal malpractice claim, the four underlying elements for issue preclusion
were met, and no additional considerations precluded use of the doctrine.
We start out analysis by reviewing the use of issue preclusion in the
unique context of a criminal malpractice claim following a successful
ineffective-assistance claim.
Resolution of this interlocutory appeal centers on the offensive use
of issue preclusion in a legal malpractice case brought by a criminal defendant against his public defender trial attorney after obtaining relief
from his conviction based on ineffective assistance of counsel. In the
reverse situation, criminal defense attorneys may use their client’s
unsuccessful ineffective-assistance claim to bar a subsequent claim for
malpractice, a defensive use of issue preclusion. See Hall v. Barrett, 412
N.W.2d 648, 650–51 (Iowa Ct. App. 1987) (affirming summary judgment
in favor of criminal defense attorney).7 This is because the criminal
7The same is true in many other jurisdictions. See, e.g., Shaw v. State, 816 P.2d 1358, 1361 (Alaska 1991) (“If the defendant was denied post-conviction relief, the legal principle of collateral estoppel would serve to eliminate any frivolous malpractice claim.”); Sanders v. Malik, 711 A.2d 32, 34 (Del. 1998) (“It . . . was appropriate in this case for the Superior Court to have applied the doctrine of collateral estoppel if the issue of [the defense attorney’s] competency actually was litigated and decided in [the defendant’s] criminal proceedings. . . . Under the circumstances, we agree with the Superior Court’s holding that [the defendant’s] civil lawsuit was barred by the doctrine of collateral estoppel.” (footnote omitted)); Belford v. McHale Cook & Welch, 648 N.E.2d 1241, 1246 (Ind. Ct. App. 1995) (“The issue of ineffective assistance of counsel was decided unfavorably to [Belford] and affirmed in a decision by the Seventh Circuit Court of Appeals. As a matter of law, the trial court properly granted summary judgment in favor of [the attorney and the law firm] on [Belford’s] claim for malpractice relating to the investigation, guilty plea, and sentence.” (citation omitted)); Brewer v. Hagemann, 771 A.2d 1030, 1033 (Me. 2001) (applying collateral estoppel to bar a malpractice claim filed after a defendant was denied his claims for postconviction relief); Gibson v. Trant, 58 S.W.3d 103, 115 (Tenn. 2001) (“[A] criminal defendant who believes he has been wrongly convicted should seek redress through the post-conviction process, not through a legal malpractice action. Collateral estoppel provides that once he does seek such relief, and it is denied, he cannot thereafter bring a civil claim based on the same allegations brought before the post-conviction court.”). But see Rantz v. Kaufman, 109 P.3d 132, 140, 142 12
defendant, the party against whom issue preclusion is used, is a party to
both proceedings and has the same opportunity and incentive to litigate
the attorney’s conduct for purposes of seeking to overturn a conviction
through an ineffective-assistance-of-counsel claim as for seeking
monetary damages through a malpractice claim. Id. at 651.
When the situation is reversed, as it is here, and the criminal
defendant successfully challenges his conviction based on ineffective
assistance of counsel, the only courts of which we are aware to have
addressed the issue have rejected offensive use of issue preclusion by the criminal-defendant-turned-malpractice plaintiff. See, e.g., Stewart v.
Elliott, 239 P.3d 1236, 1239–42 (Alaska 2010); Noske v. Friedberg, 670
N.W.2d 740, 746 (Minn. 2003) (en banc); Stevens v. Horton, 984 P.2d 868,
872–73 (Or. Ct. App. 1999). The primary reasoning is that an ineffective-
assistance claim is between the criminal defendant and the state, acting
in its capacity as prosecutor, so issue preclusion does not apply as against
the attorney who was not a party to the PCR action. The Restatement
(Third) of the Law Governing Lawyers takes the same position, recognizing
that issue preclusion may be used defensively in a criminal malpractice
action to prevent a criminal defendant from relitigating issues decided
adversely in a PCR action “even though the lawyer sued was not a party to
that proceeding and is hence not bound by any decision favorable to the
defendant.” Restatement (Third) of the L. Governing Laws. § 53, at 392
(Am. L. Inst. 2000) (emphasis added).8
(Colo. 2005) (en banc) (“Because prior postconviction relief is not a requirement to maintain suit, the denial of Rantz’s . . . motion for ineffective assistance of counsel alone does not prevent Rantz from stating a malpractice claim.”). 8We have applied the Restatement (Third) section 53 position in other contexts. See Barker, 875 N.W.2d at 165–68 (recognizing division among jurisdictions and “find[ing] the approach taken by the Restatement [section 53] and like-minded jurisdictions to be 13
In Stevens v. Horton, the Oregon Court of Appeals rejected offensive
use of issue preclusion in a subsequent criminal malpractice action
because the state as the opposing party in the PCR proceeding was not in
privity with the opposing parties in the malpractice action, the criminal
defense attorneys. 984 P.2d at 873. But the court did not limit its analysis
to a lack of privity, recognizing that, “in a pragmatic sense, [the
malpractice] plaintiff is correct that [his criminal defense attorney’s]
testimony was central to the state’s defense in the post-conviction
proceeding.” Id. Nonetheless, it identified two fundamental reasons for not holding the criminal defense attorney to the PCR court’s judgment.
First, the state had no duty in the PCR action to represent the attorney–
defendants, “and, accordingly, defendants lacked any ability to direct or
control the state’s defense of [the criminal attorney’s] conduct.” Id. (noting
counsel had no ability to call expert witnesses or cross-examine the PCR
plaintiff’s witnesses). “Second, because the state’s interests in the post-
conviction proceeding differed dramatically from defendants’ interests in
the malpractice proceeding, the state cannot be said to have ‘represented’
defendants’ ‘interests.’ ” Id. (noting the differences between the state’s
interest in protecting a criminal conviction that can be retried and the
defense attorneys’ personal interest in their professional and financial
future).
Although Alaska applies a more stringent privity test than did
Oregon in Stevens, the Alaska Supreme Court relied on similar reasoning
in Stewart v. Elliott. The Alaska Supreme Court noted that the defense
attorney’s “limited participation in post-conviction relief certainly did not
allow him sufficient control to establish privity.” Stewart, 239 P.3d at
persuasive” in requiring judicial relief from a conviction, but not proof of actual innocence, as a prerequisite to a malpractice action by a criminal defendant). 14
1241. Likewise, even though he submitted an affidavit that gave “him
some opportunity to explain his actions, it did not give him the opportunity
to more broadly control the litigation.” Id. at 1242. The court supported
its conclusion by analogy to a recent case where it “held that a decision
against a state social service agency did not bind the state-employed social
worker when she was subsequently sued in her individual capacity.” Id.
(discussing State v. Doherty, 167 P.3d 64 (Alaska 2007)). The court
concluded,
[A]s a matter of sound policy, this is how it should be. For when the government enters the courthouse in order to prosecute criminal conduct or protect a child in need of aid, it should not be distracted from its purpose by the personal interests of its employees.
Id. (quoting Doherty, 167 P.3d at 72).
Clark has identified, and we have found, no case allowing the
offensive use of a prior successful ineffective-assistance claim to
preclusively establish the breach element in a subsequent criminal
malpractice action. Clark does not even dispute this is the proper outcome
when the criminal defendant is represented by a private attorney. Instead,
he argues that a publicly-employed attorney sued under a tort claims act
that substitutes the state for the public employee as the defendant in a malpractice action is different than the private attorney context because
the state is the named defendant in both the PCR action and the
malpractice action. Clark’s attempt to explain away the significantly
different position the state holds in each of those cases is unpersuasive.
The dramatically different interests between the state in defending a
conviction in a PCR proceeding and a defense attorney’s interests in
defending against liability in a criminal malpractice action that support the Oregon and Alaska courts’ decisions exist even when the attorney is a 15
state public defender employed by the state. Critically, the state acting as
prosecutor in defending against an ineffective-assistance claim owes no
duty to the criminal defendant’s counsel just because he is a public
defender. In an analogous situation, findings in a criminal suppression
hearing related to police officer misdeeds cannot be used preclusively in
the criminal defendant’s subsequent civil action against the police officer
because the officer and his government employer had different interests
from, and lacked privity with, the state in criminal proceedings. See, e.g.,
Turpin v. Cnty. of Rock, 262 F.3d 779, 782–83 (8th Cir. 2001) (“Collateral estoppel [under Nebraska state law] cannot be used against the officers [or
their county employer] in our case, as the officers were neither parties nor
in privity with the State in the criminal action and did not have a full and
fair opportunity to litigate the issues in the criminal action.”); Duncan v.
Clements, 744 F.2d 48, 51–52 (8th Cir. 1984) (applying Missouri law and
holding police officers were not “virtually represented” by the state in a
suppression hearing because the interests of the state in the criminal
proceeding differed from officers’ interest in subsequent civil suit despite
the officers’ involvement in suppression hearing).
The Restatement (Second) of Judgments explains, “A party
appearing in an action in one capacity, individual or representative, is not
thereby bound by or entitled to the benefits of the rules of res judicata in
a subsequent action in which he appears in another capacity.”
Restatement (Second) of Judgments § 36(2), at 359 (Am. L. Inst. 1982).
“The rule that a person appearing in litigation in one capacity is not,
generally speaking, affected thereby in another legal capacity serves to
safeguard the integrity of such representative functions.” Id. cmt. a. “With respect to issue preclusion, a party appearing in successive actions . . . is
not precluded where the capacities in which he participated are different.” 16
Id. at 360. The Restatement (Second) goes on to address this rule in the
context of government agencies with distinct responsibilities, explaining,
If the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them, the earlier judgment should not be given preclusive effect in the second action.
Id. cmt. f at 364.
This reasoning applies to the State’s involvement in the cases here.
No one would seriously suggest that the State’s relationship with Clark, or his attorney, at the criminal trial stage would be different had he been
represented by a private attorney instead of the public defender’s office.
During the trial, those interests were clearly antagonistic, with the
publicly-employed defense attorney working against conviction while the
State worked for conviction. That relationship did not magically change
when Clark sought relief from his conviction based on ineffective
assistance of counsel. In the PCR action, the State continued in its
prosecutorial role to represent the citizens of Iowa with the responsibility
of upholding the state’s laws and, ultimately, seeing that justice is done.
As the criminal defense attorney’s employer in the malpractice action, the
State stepped into an entirely different capacity, one that has the
responsibility of preserving the public fisc and defending its employee’s
actions and reputation, as well as the reputation of its public defender’s
office. While the unique nature of an ineffective-assistance claim
necessarily puts the State as prosecutor in the position of defending the
criminal defense attorney’s conduct, that is no less true when the attorney
is privately retained. Yet, as in Stewart and Stevens, the State cannot be said to be in privity with that attorney, even if he happens to be a public
defender. 17
The Johnson County Attorney’s office in this case was not expected
to defend the PCR action by placing the risk to the public fisc from a
malpractice suit and Robertson’s and the state public defender’s office’s
reputational interests at the forefront of its strategy. Any such expectation
would endanger the integrity of the Johnson County Attorney’s office and
its prosecutorial obligations to the citizens of Iowa. The State’s ultimate
responsibility is to see that justice is done, not to defend its conviction at
all costs. When PCR relief is granted, the State often elects not to retry
the defendant on the same charges, even though a second conviction would eliminate a possible malpractice claim against the defense attorney.
For example, the State may conclude that if the defendant has already
served substantial prison time, justice has been done and the additional
expense of a lengthy retrial does not best serve the State’s prosecutorial
interests. Forcing the State to nonetheless retry the defendant just to
avoid issue preclusion on a potential malpractice claim is not only an
unwise and impractical public policy, it also imposes incompatible
obligations on the State.
When the State prosecutor “enters the courthouse in order to
prosecute criminal conduct . . . , it should not be distracted from its
purpose by the personal interests of [state] employees” who represented
its adversary. Stewart, 239 P.3d at 1242 (quoting Doherty, 167 P.3d at
72). Yet, the district court’s ruling imposed just such a duty when it
stated: “Any manner in which the State could prove that defense counsel
had done his job to the appropriate professional level of competence
should have been set forth and argued at the post-conviction relief trial.”
Had Clark been represented by a private attorney, the State would not be expected to set forth every manner in which that attorney acted
competently. Rather, it would have exercised its discretion in defending 18
the ineffective-assistance claims under the strategy that best served the
citizens of Iowa—a strategy that may or may not have included defending
each of the attorney’s actions.
The Minnesota Supreme Court has also held that a finding of
ineffective assistance of counsel in a habeas case does not preclude the
attorney from arguing he was not negligent in the criminal defendant’s
subsequent malpractice action. See Noske, 670 N.W.2d at 746 (reaching
merits of argument despite procedural challenges). The court relied on the
reasoning from a prior decision where it explained:
Review of the issue of ineffectiveness is not to pass judgment on the abilities of a defense lawyer. Rather, the overall concern is limited to whether our adversary system of criminal justice has functioned properly. The narrow issue is not whether defense counsel was effective in the assistance rendered but rather whether defendant received the effective assistance required to assure him a fair trial and the integrity of our adversary system of justice.
Id. (quoting White v. State, 248 N.W.2d 281, 285 (Minn. 1976) (per
curiam)). Likewise, adjudication of ineffective-assistance claims under
Iowa law can turn on considerations beyond whether defense counsel’s
actions fell below an acceptable level of competence. See State v. Clay,
824 N.W.2d 488, 504 (Iowa 2012) (Mansfield, J., concurring) (“I think a
fair assessment of our recent precedents is that they recognize a rather broad concept of what constitutes a failure to perform an essential duty
for ineffective-assistance-of-counsel purposes.”); see also Jon M.
Woodruff, Note, Plain Error by Another Name: Are Ineffective Assistance of
Counsel Claims A Suitable Alternative to Plain Error Review in Iowa?, 102
Iowa L. Rev. 1811, 1825 (2017) (describing Rhoades v. State, 848 N.W.2d
22 (Iowa 2014), as what “may be the clearest example of the Iowa Supreme Court’s willingness to find defense counsel ineffective under
circumstances where the attorney’s conduct appeared to be well within the 19
normal bounds of attorney representation” based on established precedent
and legitimate trial strategy considerations supporting a guilty plea as the
defendant’s best option); id. at 1826–28 (describing State v. Ross, 845
N.W.2d 692 (Iowa 2014), and noting “it is difficult to question the conduct
of Ross’s trial counsel” who lacked the benefit of caselaw nonexistent at
the time of trial but was nevertheless found to be ineffective).
While the Minnesota court’s reasoning does not directly address the
privity requirement of issue preclusion, it does shed light on whether an
attorney defending against a malpractice claim had a full and fair opportunity to litigate his actions in the prior PCR proceeding, see
Dettmann, 613 N.W.2d at 244 (privity requires the party to have had a full
and fair opportunity to litigate the issue in the first proceeding), where
ineffective-assistance findings do not always track directly from counsel’s
actions. It also helps explain why a finding that a criminal defendant is
entitled to relief from a conviction based on ineffective assistance of
counsel does not a fortiori establish that counsel breached his duties for
purposes of a malpractice action.
Like many other jurisdictions we require postconviction relief as a
necessary prerequisite to a criminal legal malpractice claim, see Kraklio,
909 N.W.2d at 439; see also Stewart, 239 P.3d at 1240, but like Alaska,
“we have never suggested that it takes the place of establishing the
elements of negligence,” Stewart, 239 P.3d at 1240; see also White, 248
N.W.2d at 285 (holding that a finding of ineffective assistance of counsel
does not necessarily “entail the success of a malpractice action against the
defense attorney”); Bailey v. Tucker, 621 A.2d 108, 114–15, 115 n.14 (Pa.
1993) (requiring criminal defendant to obtain posttrial relief dependent on attorney error before bringing a criminal malpractice action and
“emphasiz[ing] that a finding of ineffectiveness is not tantamount to a 20
finding of culpable conduct”); cf. Hicks v. Nunnery, 643 N.W.2d 809, 830–
31 (Wis. Ct. App. 2002) (holding evidence of attorney’s testimony admitting
he provided ineffective assistance in PCR proceeding was admissible at
subsequent malpractice trial without suggesting it would have preclusive
effect). This is true whether or not defense counsel is employed by the
State. There is simply no principled basis for treating malpractice claims
differently based on the identity of defense counsel’s employer.
We conclude the State as defendant in this malpractice action was
not the same party, or in privity with a party, in the PCR action. The State in its capacity as the criminal defense attorney’s employer lacked a full
and fair opportunity to litigate whether the criminal defense attorney
breached duties owed to Clark in the PCR action. Given this resolution,
we need not address the State’s other challenges to Clark’s use of issue
preclusion.
While we hold that Clark may not use his successful ineffective-
assistance-of-counsel claims to preclusively establish the breach elements
of his malpractice claims, we reiterate that our holding does not diminish
Clark’s ability to rely on the same evidence he successfully used before.
We merely hold that he cannot rely on the ineffective-assistance findings
as a matter of law to avoid even presenting that evidence.
IV. Conclusion.
The district court’s grant of partial summary judgment is reversed
and the case is remanded for further proceedings.
REVERSED AND REMANDED.