RENDERED: JUNE 21, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0511-MR
HATEM KAISI APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ERIC JOSEPH HANER, JUDGE ACTION NO. 21-CI-006975
JOHN ISAACS, SR. AND JOHN ISAACS AND ASSOCIATES, LLC APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.
EASTON, JUDGE: The Appellant (“Kaisi”) asks us to reverse the Order of the
Jefferson Circuit Court dismissing his Complaint against the Appellees (“Isaacs”)
in this case alleging malpractice by accountants. Because Kaisi’s claims are barred
by collateral estoppel and public policy, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kaisi was in the business of selling cars. Isaacs provided accounting
services and prepared Kaisi’s tax returns. Kaisi refers to what he calls a “family ownership scheme” supposedly created by Isaacs for Kaisi through which income
could be diverted to Kaisi’s family members, thus avoiding taxes. Kaisi created
limited liability companies as part of this scheme. Because of improperly
unreported income, Kaisi was indicted not only for tax evasion, but also for falsely
claiming low-income eligibility for Medicaid medical coverage.
In a plea agreement with the federal government, Kaisi pled guilty to
his charges “because he is in fact guilty of the charges” according to the plea
agreement. Kaisi agreed to the factual basis for the charges, which included his
personal mental state of having “willfully” participated in tax evasion. Kaisi could
have been sentenced to up to 19 years in prison but instead received a sentence of
one year. He also had to pay several hundred thousand dollars back to the federal
government.
Kaisi does not shy away from his criminal conviction. He pleads it in
his Complaint and seeks to recover from Isaacs for breach of contract, negligence,
emotional distress, and loss of reputation, all of which he blames on Isaacs for
supposedly advising him into the tax evasion. The circuit court dismissed the
Complaint for failure to state a claim upon which relief may be granted. This
appeal follows.
-2- STANDARD OF REVIEW
The parties agree on the standard of review. The decision to be
reviewed is a dismissal under CR1 12.02. The circuit court did not consider any
material outside of the pleadings, making it clear that the decision was not based
on evidentiary materials submitted. Kaisi’s criminal conviction was pled by him
and not denied in any answer. This is not a situation of a dismissal motion
becoming a summary judgment because of the consideration of evidentiary
materials outside of the pleadings. On a motion to dismiss, the circuit court and
this Court must accept as true the facts alleged in the Complaint. Only a legal
question is presented. We review the decision of the circuit court de novo. Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010).
ANALYSIS
Because this case involves a dismissal rather than summary judgment,
we need not delve into any factual disputes about what Isaacs did. For example,
Isaacs does not deny doing certain work for Kaisi, but Isaacs insists Kaisi did not
follow advice on making required distributions of income. Still, we must assume
1 Kentucky Rules of Civil Procedure.
-3- all Kaisi’s allegations are true, and that Isaacs committed malpractice2 in the
services provided to Kaisi.
The question then becomes whether Kaisi may sue his accountant
after he has pled guilty to crimes arising from the same transactions. This question
requires us to evaluate two issues – collateral estoppel and public policy.
The leading Kentucky case for both these issues is Ray v. Stone, 952
S.W.2d 220 (Ky. App. 1997). Ray is factually distinguishable because it addressed
attorney malpractice rather than accountant malpractice. Yet the general principle
of collateral estoppel applies equally. In Ray, a client sued his attorney after the
client was convicted of crimes. The client claimed the attorney was liable for
damages the client suffered from the conviction because of how the attorney
handled the case.
This Court in Ray held collateral estoppel barred the claims. Id. at
224. Collateral estoppel in these circumstances results from issue preclusion, a
specific application of res judicata. We have recognized “the essential elements
courts must evaluate when undergoing a collateral estoppel analysis: (1) identity
of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with
2 All the claims Kaisi has asserted fit to some extent under the umbrella of professional negligence regardless of what they are called in the Complaint. See Lawrence v. Bingham, Greenebaum, Doll, L.L.P., 567 S.W.3d 133, 141 (Ky. 2018). As we will explain later, public policy precludes Kaisi’s claims regardless of how they are denominated.
-4- the estopped party given a full and fair opportunity to litigate; and (4) a prior losing
litigant.” Estate of Reeder v. Ashland Police Department, 588 S.W.3d 160, 166
(Ky. App. 2019).
These elements are met when we evaluate the issue of whether Kaisi
himself is guilty of crimes for his willful conduct. Kaisi was the prior losing
litigant in the criminal case. The judgment entered on Kaisi’s guilty plea was final.
He had the required opportunity to litigate the issues, although Kaisi chose to
forego a trial with his guilty plea. The common issue in the criminal case and in
this subsequent civil case is Kaisi’s criminal intent to willfully violate the law.
With preclusion of relitigating that issue, the question then becomes whether Kaisi
may still blame his accountant and recover damages.
The distinction between attorney malpractice and accountant
malpractice should be considered in this analysis. In the context of blaming the
attorney for a criminal conviction, there is more of a nexus with the criminal
conviction than with an accountant providing services which happen to lead to a
criminal conviction. Clients often blame trial attorneys especially for actions or
inactions in the proceedings which directly led to convictions. In that context, Ray
established a rule requiring exoneration before the attorney could be sued. If the
client was in fact guilty of a crime as established by a judgment, then no action
may be taken against an attorney involved in the criminal case, until the conviction
-5- was set aside, which may be accomplished through a finding of ineffective
representation by counsel in post-conviction proceedings in the criminal case. Ray,
supra, at 225.
The Kentucky Supreme Court has recognized this Exoneration Rule
based on Ray. Lawrence v. Bingham, Greenebaum, Doll, L.L.P., 567 S.W.3d 133,
140 (Ky. 2018).3 But we have no published4 authority in Kentucky which
addresses how collateral estoppel from a criminal conviction might apply to an
accountant malpractice claim. As we will see, several other states have been called
upon to decide this question and lead us to the conclusion that Kaisi cannot
maintain this case against Isaacs.
In Ray, we borrowed from the experience of Texas courts.5 Texas
courts have twice evaluated collateral estoppel for accountant malpractice claims.
3 Despite criticism of the rule in other states, we must follow our Supreme Court’s position regarding the Exoneration Rule, including the fairly recent Lawrence decision. It is a rule usually referenced only in the context of attorney malpractice. We need not “extend” it in this case. We simply recognize that the principles of collateral estoppel and public policy which uphold the Exoneration Rule also uphold the ruling in this case, although we respect the concurrence’s concerns about collateral estoppel as applied here. In any event, we all agree that Kaisi’s claims are barred. 4 We are aware of Lawrence v. Ryan, Nos. 2016-CA-000103-MR and 2016-CA-000440-MR, 2017 WL 1806768 (Ky. App. May 5, 2017). This case involved the same plaintiff as the Lawrence case to which we have just referred. In this unpublished case, this Court held an accountant could not be sued by a client who pled guilty to criminal charges supposedly resulting from the accountant’s advice. In doing so, this Court relied on Ray, supra, and did not discuss the unclean hands doctrine. 5 Ray includes a citation to Peeler v. Hughes, 868 S.W.2d 823 (Tex. Ct. App. 1993), aff’d, 909 S.W.2d 494 (Tex. 1995).
-6- The first case is Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex.
Ct. App. 1993). Dover, like Kaisi here, pled guilty to willful tax evasion. To be
found guilty of such a charge necessarily means that the client did not rely in good
faith on the advice of his tax professionals, because that is a defense to such a
charge. Id. at 448. Even when this defense is not affirmatively asserted and thus
not actually adjudicated, the admitted willful criminal intent remains for issue
preclusion. Issue preclusion then works to support collateral estoppel for the
accountant malpractice claim similar to its application to attorney malpractice.6
With the fact of such a criminal conviction, we then must look at
public policy. Like the attorney situation, public policy prohibits the claims
against the accountants by the criminally convicted client. The established
individual guilt of the client cannot be overcome as the actual cause of the
damages claimed. Id. at 451. See also Andrew Shebay and Co., P.L.L.C. v.
Bishop, 429 S.W.3d 644 (Tex. Ct. App. 2013).
Other states in similar circumstances have agreed that collateral
estoppel and public policy bar the claims against the accountants. See Worman v.
Carver, 44 P.3d 82 (Wyo. 2002); Columbia Medical Group, Inc. v. Herring &
6 We do not disagree with the thoughtful concurring opinion in its analysis of the “unclean hands” doctrine with respect to any equitable claim. The doctrine was not argued by the parties, but it is permissible for this Court to consider it. While the word “disgorgement” is not used in the Complaint, the claim for return of fees paid is clearly stated as one of the damages sought. But this equitable doctrine can take us only so far. It applies only to equitable claims, which are only part of what Kaisi asserts.
-7- Roll, P.C., 829 A.2d 1184 (Pa. Super. 2003). The criminal acts of the client “were
the substantial factor in bringing about the damages” the client suffered. Id. at
1190.
Only a badly divided Georgia appellate court has allowed such a
claim. Consolidated Management Services, Inc. v. Halligan, 368 S.E.2d 148 (Ga.
App. 1988). The Georgia court allowed the claim because of an evidentiary rule
forbidding the use of a criminal conviction in a subsequent civil suit. Id. at 150.
The ruling was based on Pierce v. Pierce, 243 S.E.2d 46 (Ga. 1978) (evidence of
husband’s acquittal of sexual abuse charges could not be introduced in divorce
proceedings).
The continued validity of Pierce is suspect. The underlying
evidentiary rule applied in Halligan was later distinguished to permit evidence of a
guilty plea in a subsequent civil case. Trustgard Ins. Co. v. Herndon, 790 S.E.2d
115, 118 n.3 (Ga. App. 2016). This older evidentiary rule is also inconsistent with
more specific modern rules allowing such evidence as seen for example in
RESTATEMENT (SECOND) OF JUDGMENTS § 85(2)(a).
Regardless of the continued validity of Halligan in Georgia, its
reasoning is specifically contrary to Kentucky law. We permit the use of a
criminal conviction as evidence in a subsequent civil case. Gossage v. Roberts,
904 S.W.2d 246, 249 (Ky. App. 1995). We also allow such evidence as a hearsay
-8- exception under KRE7 802(22). Georgia now has its own version of KRE 802(22),
which became effective in 2013 as part of a comprehensive new evidence code.
Ultimately, we return to Ray. Our public policy does not allow
anyone to obtain damages when their own criminal conduct is a cause of those
damages. Ray, supra, at 224. The cases from other jurisdictions which have
barred such claims against accountants have similarly expressed this public policy.
Kaisi cannot maintain a suit against his accountant because Kaisi’s
own criminal actions played a substantial part in the damages he claims. This must
include not only claims relating to imprisonment and financial penalties Kaisi
incurred but also the other costs of Kaisi’s willful participation in the “scheme.”
Characterizing the claims as loss of reputation, emotional distress, or other claims
does not somehow remove them from the public policy prohibiting the criminally
convicted client from recovering from his accountants. See Worman, supra, at 85.
CONCLUSION
Because Kaisi was adjudicated guilty upon his guilty plea to willful
participation in his crimes relating to tax evasion, he is collaterally estopped from
claiming he is not responsible for his own actions. With this level of personal
responsibility, public policy prevents Kaisi from making claims against the
7 Kentucky Rules of Evidence.
-9- accountants who provided services to him which may have led him to his criminal
acts. The Jefferson Circuit Court is AFFIRMED.
GOODWINE, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS IN RESULT ONLY AND FILES A SEPARATE OPINION.
ACREE, JUDGE, CONCURRING IN RESULT ONLY: Like the majority, I
conclude that affirming the trial court is the correct result. However, I believe the
circuit court’s rationale is legally erroneous. Therefore, I respectfully disagree
with the majority opinion’s analysis that affirms on that same basis. I would affirm
on different grounds, by applying the doctrine of unclean hands. Kentucky Farm
Bur. Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky. App. 1991) (Court of
Appeals, “as an appellate court, may affirm the trial court for any reason
sustainable by the record.”).8
8 In addition to the other reasons set out in these opinions, this Court would be justified in affirming the trial court based on Kaisi’s counsel’s violations of the Kentucky Rules of Appellate Procedure (RAP). RAP 10; Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) (argument failing to inform appellate court how issue was preserved and where to find it in record can be treated as unpreserved and argument stricken from brief unless party seeks palpable error review). Besides violating RAP 32(A)(3) and (4) by failing to provide a preservation statement and failing to cite to the record, the brief does not include a statement of points and authorities setting out Kaisi’s “contentions with respect to each issue of law relied upon for a reversal, listing under each the authorities cited on that point and the respective pages of the brief on which the argument appears and on which the authorities are cited.” RAP 32(A)(2). The section titled “Statement of the Case” does not “consist[] of a summary of the facts and procedural events relevant and necessary to an understanding of the issues presented . . . .” RAP 32(A)(3). The brief also fails to comply with the following rules: RAP 31(A)(1)(e); RAP 32(E)(1)(a), RAP; 32(E)(1)(d).
-10- Applying unclean hands doctrine resolves Kaisi’s claim in Isaacs’s favor
As now Justice Thompson said in an opinion he authored as a Judge
of this Court of Appeals:
The unclean hands doctrine is a rule of equity that forecloses relief to a party who has engaged in fraudulent, illegal, or unconscionable conduct but does not operate so as to “repel all sinners from courts of equity.” Dunscombe v. Amfot Oil Co., 201 Ky. 290, 256 S.W. 427, 429 (1923). “The transaction with respect to which there was misconduct must be connected with the matter in litigation in order for the doctrine of unclean hands to apply.” Eline Realty Co. v. Foeman, 252 S.W.2d 15, 19 (Ky. 1952).
Suter v. Mazyck, 226 S.W.3d 837, 843 (Ky. App. 2007). And so it is in this case.
The remedy Kaisi seeks is the disgorgement of the professional fees
he paid Isaacs. Disgorgement is an equitable remedy. Bracken v. Johnson, 249
S.W.2d 149, 153 (Ky. 1952). To the extent Kaisi claims other damages for
emotional distress and loss of sales and reputation, the equitable doctrine of
unclean hands will still apply because doing so is not “in direct conflict with
settled legislatively enacted rules of practice approved and followed by courts of
equity from an ancient day to the present time.” Vittitow v. Keene, 95 S.W.2d
1083, 1084 (Ky. 1936).
Kaisi’s conduct perfectly suits the doctrine’s application here. He
pleaded guilty to the federal felony of filing false tax returns and understating
income. (Complaint ¶ 6.) That is, he “willfully ma[de] and subscrib[ed a federal
-11- tax] return . . . which contains or is verified by a written declaration that it is made
under the penalties of perjury, and which he does not believe to be true and correct
as to every material matter . . . .” 26 U.S.C.9 § 7206(1) (captioned Fraud and False
Statements) (emphasis added). The mens rea element indicated by this federal
statute required Kaisi to acknowledge that even if Isaacs’s professional advice and
tax planning was to blame, Kaisi knew that before signing returns understating his
income and knowingly making statements subject to penalties for perjury.
Of course, Kaisi’s allegations of Isaacs’s own wrongdoing are deemed
true for purposes of reviewing the CR10 12.02 dismissal. But Isaacs’s presumed
wrongdoing changes nothing. “[T]he equitable maxim that ‘he who comes into
equity must come with clean hands’ . . . closes the doors of a court of equity to one
tainted with inequitableness or bad faith relative to the matter in which he seeks
relief, however improper may have been the behavior of the defendant.” Precision
Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 65 S. Ct. 993,
997, 89 L. Ed. 1381 (1945) (emphasis added).
9 United States Code. 10 Kentucky Rules of Civil Procedure.
-12- The prohibition against suing with unclean hands “does not demand
that its suitors[11] shall have led blameless lives, . . . [but] it does require that they
shall have acted fairly and without fraud or deceit as to the controversy in issue.”
Id. at 814-15, 65 S. Ct. at 997 (internal quotation marks and citations omitted).
The doctrine of unclean hands “necessarily gives wide range” to a court’s “use of
discretion in refusing to aid the unclean litigant. It is not bound by formula or
restrained by any limitation that tends to trammel the free and just exercise of
discretion.” Id. at 815, 65 S. Ct. at 997 (internal quotation marks and citation
omitted). “Any willful act concerning the cause of action which rightfully can be
said to transgress equitable standards of conduct is sufficient cause for the
invocation of the maxim . . . .” Id. at 815, 65 S. Ct. at 997-98 (internal quotation
marks and citations omitted).
So, while the misconduct of the party against whom the doctrine is
applied “need not necessarily have been of such a nature as to be punishable as a
crime[,]” id. at 815, 65 S. Ct. at 997, a court is on sound footing when applying the
doctrine to dismiss an action by a plaintiff convicted of a felony “connected with
the matter in litigation[.]” Suter, 226 S.W.3d at 843 (internal quotation marks and
11 The term “suitor” has fallen out of favor in this context but is synonymous with “plaintiff” or “petitioner.” Suitor, BLACK’S LAW DICTIONARY (11th ed. 2019) (“suitor (16c) 1. A party that brings a lawsuit; a plaintiff or petitioner. . . .”).
-13- citation omitted). The facts presumed as true in Kaisi’s complaint are tailor-made
for application of the unclean hands doctrine. I would affirm on that basis.
Circuit court’s order is the product of legal error
More importantly, the circuit court reached the right result by
committing legal error. As explained below, collaterally estopping Kaisi’s claim
cannot be accomplished by issue preclusion. And, to the extent the circuit court
relies on public policy that manifests as the Exoneration Rule, it exceeds that rule’s
scope and purpose, which is only to temper claims of criminal malpractice.
The term “criminal malpractice” has been used only to describe a
legal malpractice action brought by a former criminal defendant against his or her
former criminal defense attorney. See, e.g., Otto M. Kaus & Ronald E. Mallen,
The Misguiding Hand of Counsel – Reflections on “Criminal Malpractice,” 21
U.C.L.A. L. Rev. 1191, 1191 n.2 (1974) (defining the phrase). The Kentucky
Supreme Court used the term in this context in United States, ex rel. United States
Attorneys ex rel. Eastern, Western Districts of Kentucky v. Kentucky Bar
Association, 439 S.W.3d 136, 156 n.90 (Ky. 2014). The Kaus & Mallen article
also gave birth to “[t]he idea that a former client must obtain postconviction relief
before bringing a malpractice suit against his or her criminal defense attorney[.]”
Rantz v. Kaufman, 109 P.3d 132, 135 (Colo. 2005) (citing Kaus & Mallen, supra).
-14- As discussed below, issue preclusion cannot bar Kaisi’s claim against
Isaacs because not all the doctrine’s elements are satisfied. However, collateral
estoppel of another sort will bar Kaisi’s tort claim against his accountants if this
Court sanctions expansion of the Exoneration Rule. I believe that is ill-advised.
The Exoneration Rule requires that a convicted felon “must accept as
the sole, proximate, and producing cause of the indictment, conviction, and
resultant incarceration, his own unlawful conduct.” Ray, 952 S.W.2d 224. As I
also discuss below, we should not make the mistake of expanding the Exoneration
Rule by adopting the circuit court’s errant analysis. Public policy considerations
not only fail to justify, but weigh against, applying that rule of law to anyone other
than the convicted felon’s former defense counsel.
Issue preclusion cannot apply in this case
Consider first the inapplicability of issue preclusion to resolve this
case. One of the elements of issue preclusion, the fifth element, is that “the
decision on the issue in the prior action must have been necessary to the court’s
judgment and adverse to the party to be bound.” Miller v. Admin. Off. of the Cts.,
361 S.W.3d 867, 872 (Ky. 2011) (emphasis added) (internal quotation marks and
citations omitted). There are thus two parts of this fifth element: (1) resolving the
issue was necessary to the prior adjudication, and (2) the prior tribunal decided the
issue adversely to the party to be bound, in this case Kaisi. Neither is so here.
-15- Isaacs cannot claim that when the federal court adjudicated Kaisi’s
guilt, it was necessary to resolve the issue of Isaacs’s innocence. Plea Agreement,
United States v. Hatem Kasi,12 No. 3:18-CR-215-GNS (W.D. Ky. Jan. 14, 2021).
In fact, taking Kaisi’s allegations of Isaacs’s wrongdoing as true, the
Internal Revenue Service could justly charge Isaacs with violating the same statute
Kaisi violated, 26 U.S.C. § 7206. Kaisi violated subsection (1), but subsection (2)
authorizes prosecuting “[a]ny person who . . . [w]illfully aids or assists in, or
procures, counsels, or advises the preparation or presentation under, or in
connection with any matter arising under, the internal revenue laws, of a return,
affidavit, claim, or other document, which is fraudulent or is false as to any
material matter . . . .” 26 U.S.C. § 7206(2) (emphasis added). Furthermore, Isaacs
can be prosecuted under this statute “whether or not such falsity or fraud is with
the knowledge or consent of” Kaisi. Id. (emphasis added).13
Because the federal court’s adjudication of Kaisi’s guilt did not
require deciding whether Isaacs engaged in wrongdoing, the first part of the fifth
12 The caption of the plea agreement spells the appellant’s name Kasi. 13 Again, presuming Kaisi’s allegations are true, Isaacs might also have violated 26 U.S.C. § 6694, entitled “Understatement of taxpayer’s liability by tax return preparer.” This statute penalizes a tax return preparer who “prepares any return or claim of refund with respect to which any part of an understatement of liability is due to a[n] . . . [u]nreasonable position.” In general, the statute is enforceable against a tax preparer who understates a taxpayer’s income based on “a position for which there was not a realistic possibility of being sustained on its merits . . . .” United States v. Pugh, 717 F. Supp. 2d 271, 288 (E.D.N.Y. 2010).
-16- element of issue preclusion is not satisfied. Similarly, because it was not necessary
to adjudicate whether Isaacs engaged in wrongdoing, it wasn’t decided adversely
to Kaisi. In fact, it wasn’t decided at all. Therefore, not only is the second part of
the fifth element (a decision on the issue adverse to Kaisi) unmet, neither are the
third and fourth elements: “(3) the issue must have been actually litigated; (4) the
issue was actually decided in that action . . . .” Miller, 361 S.W.3d at 872 (internal
quotation marks and citations omitted).
Issue preclusion, as a doctrine to collaterally estop Kaisi’s claim,
simply cannot apply in this case.
Supreme Court limited Exoneration Rule to barring criminal malpractice
While issue preclusion cannot collaterally estop Kaisi’s claim,
expanding the Exoneration Rule can. However, expanding the Exoneration Rule
beyond barring criminal malpractice claims is both unnecessary and ill-advised. It
is unnecessary because, as addressed above, Kentucky’s long-established and well-
developed unclean hands doctrine neatly resolves the question. Asher v. Asher,
129 S.W.2d 552, 553 (Ky. 1939) (“In a long and unbroken line of cases this court
has refused relief to one, who has created by his fraudulent acts the situation from
which he asks to be extricated.”). But besides being unnecessary, expanding the
Exoneration Rule is unwise and imprudent for two reasons.
-17- Primarily and most directly, the Supreme Court placed strict limits on
the rule in Lawrence v. Bingham, Greenebaum, Doll, L.L.P., 567 S.W.3d 133 (Ky.
2018). The Court’s unanimous decision expressed Kentucky’s version of the rule
in carefully chosen words when it said:
we adopt the following articulation of the Exoneration Rule: to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the post-conviction exoneration occurs.
Id. at 141 (emphasis added). The Court clearly limited application of the rule to
“professional malpractice case[s] against a criminal defense attorney[.]” Id. In
crafting that very specific rule, the Court considered “the arguments presented . . . ,
the public policy considerations . . . , the rationale for the rule, the acceptance of
the rule among the majority of states, and its application in Kentucky by the Court
of Appeals for over twenty years[.]” Id. at 140.
This leads to the secondary reason for not expanding the rule – the
controversy surrounding its limited application even when restricted to barring
criminal malpractice claims.
-18- Adopting and applying the Exoneration Rule is universally discomforting
When this Court adopted the Exoneration Rule in Ray v. Stone, we did
little more than parrot “the influential Texas case, Peeler v. Hughes & Luce, 868
S.W.2d 823, 832 (Tex. Ct. App. 1993) [(hereinafter Peeler I).]” Lawrence, 567
S.W.3d at 138. By the time the issue was before our Supreme Court two decades
later, there were “eleven approaches for a standard of criminal malpractice claims
adopted by different states” and our Justices had to decide which best suited
Kentucky. See Nicholas Van Cleve, Amending the Peeler Doctrine: How to
Provide Convicted Plaintiffs an Equitable Opportunity to Pursue Legal
Malpractice Claims, 56 HOUS. L. REV. 927, 938-43 (2019) (listing the eleven (11)
versions and categorizing each state).
Ray v. Stone put Kentucky in the fourth of those eleven (11)
categories – “Actual innocence” – a category “requir[ing] the plaintiff to prove by
a preponderance of the evidence that he or she was innocent of the crime charged.”
Id. at 940 (footnotes omitted). Lawrence v. Bingham removed the requirement of
proving actual innocence, shifting Kentucky into the sixth category on that list –
“Legal innocence or exoneration” – a category “requir[ing] that convicts establish
legal innocence via proof of exoneration or other post-conviction relief before
suing their criminal defense attorneys for malpractice.” Id. at 940-41.
-19- The panel of this Court that decided Ray v. Stone could not know then
the controversy that would erupt around the rule we adopted from Peeler v.
Hughes & Luce – what became known as the Peeler Doctrine in Texas and the
Exoneration Rule elsewhere. Fortunately, after twenty-five (25) years of national
commentary about the Texas doctrine and more generally about the Exoneration
Rule, our Supreme Court had far more authority to reference. Lawrence, 567
S.W.3d at 140 (noting, for example, that “several jurisdictions have not adopted
the Exoneration Rule but have criticized or rejected the rule.” (citing opinions from
the jurisdictions of Alabama, Indiana, Michigan, New Mexico, and Ohio)).
It is helpful to know the facts upon which the Texas Peeler Doctrine
is based, not just to better understand the doctrine itself, but as background to
Hillcrest Equities, Inc. v. Thornton, No. 05-96-01280-CV, 1999 WL 621994 (Tex.
App. Aug. 17, 1999) (hereinafter Hillcrest Equities) in which the Texas Court of
Appeals declined to extend the doctrine to prohibit Peeler from suing the
accountants who helped engineer the tax shelters underlying her conviction for
violating 26 U.S.C. § 7206(2). I discuss Hillcrest Equities separately below.
Facts underlying adoption of Peeler Doctrine
Carol Peeler was an officer in an equities firm, Hillcrest Equities.
Along with others in the firm she was “suspected of engineering illegal tax write-
offs for wealthy investors.” Peeler v. Hughes & Luce, 909 S.W.2d 494, 495-96
-20- (Tex. 1995) (hereinafter Peeler II). She came under federal criminal investigation
by the IRS and hired a partner at the law firm of Hughes & Luce to represent her.
Id. On the advice of her attorney,
Carol Peeler pleaded guilty to a criminal offense and received a sentence pursuant to a plea agreement. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995) (plurality op.). Shortly thereafter, Peeler was told by a journalist that the United States Attorney had made an offer to Peeler’s attorney of absolute transactional immunity if Peeler would become a witness and testify against her colleagues. See id. The revelation by the journalist was the first Peeler had heard of any offer of absolute immunity because her attorney had not communicated any such offer to her. See id. at 496, 498. The prosecuting attorney, an assistant United States Attorney, testified that he made this offer to Peeler through her attorney, and an agent of the Internal Revenue Service testified that, during plea-bargain discussions, the prosecutors told Peeler’s attorney that the offer of immunity previously made was no longer available. See id. at 496, n.1, 498. Peeler’s attorney denied that the assistant United States Attorney ever spoke to him concerning immunity for Peeler. See id. at 500 (Hightower, J., concurring).
Futch v. Baker Botts, LLP, 435 S.W.3d 383, 389-90 (Tex. Ct. App. 2014).
Peeler sought reversal by the Texas Supreme Court. The Court
affirmed Peeler I, but could only render a plurality opinion,14 meaning the new
14 Of the nine members of the Texas Supreme Court that affirmed the Texas Court of Appeals opinion, one did not participate, four were in the majority, and the remaining four wrote separately. One of those who wrote separately said the appellant law firm’s conduct, “if true, is reprehensible and unconscionable.” Peeler II, 909 S.W.2d at 500 (Hightower, J., concurring). He did not, however, weigh in on the adoption of the doctrine.
-21- doctrine would apply only in the courts of Texas’s Court of Appeals for the Fifth
District.15 Peeler II, 909 S.W.2d 494 (Tex. 1995). The dissenters decried “this
absolutist position[.]” Id. at 501 (Phillips, C.J., dissenting). These dissenting
Justices were the doctrine’s first critics, but they were far from the last. Starting
with these dissenters, it is entirely accurate to say, “Peeler has been criticized since
its inception.” Van Cleve, supra, at 930 (citing John G. Browning & Lindsey
Rames, Proof of Exoneration in Legal Malpractice Cases: The Peeler Doctrine
and Its Limits in Texas and Beyond, 5 ST. MARY’S J. ON LEGAL MALPRACTICE &
ETHICS 50, 56 (2014) (listing sources of criticism)).16
Subsequent Texas opinions summarized the rule emanating from this
fact-pattern as quoted, supra, in Ray, 952 S.W.2d 224, that the criminally
15 When the Texas Court of Appeals, Dallas, rendered Peeler I, the opinion became law only for one of fourteen appellate districts in Texas – the Fifth Appellate District. See Hardy v. Matter, 350 S.W.3d 329, 333 (Tex. Ct. App. 2011) (“opinions of other Texas appellate courts, however, are not binding on us”); Hines v. State, 144 S.W.3d 90, 97 (Tex. Ct. App. 2004) (“At the outset, we respectfully acknowledge that as a court of equal jurisdiction to that of the Texarkana court, we [the Fort Worth Court of Appeals] are not bound by [that court’s decision].”) That is, there is no horizontal stare decisis between or among any of Texas’s fourteen (14) separate intermediate appellate court districts. See Andrew T. Solomon, A Simple Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 ST. MARY’S L.J. 417, 429-30, 441 (2006). 16 See Van Cleve, supra, at 928-29 (“Today, application of the doctrine frequently undermines public policy objectives and makes it harder for plaintiffs with legitimate claims to succeed in court.”); Kevin Bennardo, A Defense Bar: The “Proof of Innocence” Requirement in Criminal Malpractice Claims, 5 OHIO ST. J. CRIM. L. 341 (2007) (“civil plaintiff must prove her innocence of criminal wrongdoing in order to recover in a legal malpractice suit against her former criminal defense attorney. The reasoning behind such requirements is faulty”); Joseph H. King, Jr., Outlaws and Outlier Doctrines: The Serious Misconduct Bar in Tort Law, 43 WM. & MARY L. REV. 1011, 1043-44 (2002) (“A stale smorgasbord of rationales has been offered to explain the serious misconduct bar.”).
-22- convicted defendant-cum-civil-plaintiff must accept his own criminal conduct as
the sole proximate cause of his damages. See, e.g., Gonyea v. Scott, 541 S.W.3d
238, 244 (Tex. Ct. App. 2017). The Exoneration Rule thus prohibits members of
that category of civil plaintiffs from averring his defense counsel’s comparative
fault, thereby making it impossible to prove he committed any tort at all.
Effectively, the rule narrowly revives contributory negligence.
I add no criticism of my own to the decision or analysis in Lawrence
v. Bingham. It was the type of difficult policy decision necessarily made a part of
our common law by the Supreme Court when the legislature fails to provide a legal
solution. I cite these other critical authorities to illustrate the struggle every court
experiences in striking “the proper balance between protecting the strong public
policies of preventing convicts from escaping the consequences of, or benefiting
financially from, their illegal acts and holding defense attorneys responsible for
their professional negligence[.]” Peeler II, 909 S.W.2d at 500.17
17 One scholar notes that “[t]he four public policies that Peeler’s plurality considered persuasive are only a few among the many raised by courts and scholars addressing criminal legal malpractice claims[.]” Van Cleve, supra, at 945. He went on to list others weighed on both sides of the balance.
• ensuring Sixth Amendment protections for criminal defendants by maintaining representation standards; • seeking equitable representation for all – including alleged lawbreakers; • treating attorneys equally instead of providing special protections to criminal attorneys; • denying criminals the opportunity to profit financially from their crimes; • preventing criminals from shifting responsibility for their crimes to third parties; • maintaining severe consequences for criminal activity;
-23- But the inescapable fact in all the Peeler Doctrine/Exoneration Rule
jurisprudence is that it is narrowly focused to bar only civil actions for criminal
malpractice against the attorney who defended him or her at trial. Expanding it to
bar claims against accounting firms is beyond anything the jurisprudence suggests.
That brings me to the next relevant insight about the Peeler Doctrine.
When squarely presented with the opportunity to apply its version of
the Exoneration Rule to prohibit the claims by Peeler’s firm, Hillcrest Equities,
against its accounting firm as a joint tortfeasor, the Texas court declined to do so.
Texas declined to apply Peeler Doctrine to bar claims against accountants
We rendered Ray v. Stone in 1997 before critical examination of the
Peeler Doctrine shone fuller light on its perils. We could not have known then
that, two years later, in a case tangential to Peeler I and involving some of its
• advancing the war on crime; • protecting the credibility of the justice system; • holding criminal defense attorneys responsible for their negligence; • protecting future plaintiffs from bad lawyers; • providing attorneys the freedom to do what is best for their clients instead of incentivizing the satisfaction of every client request; • avoiding an influx of criminal legal malpractice cases that might overburden courts; • avoiding circumstances that might discourage criminal defense attorneys from accepting new clients; and • avoiding redundancy in a system already safeguarded by protections against mistaken convictions.
Id. at 945-46 (footnotes omitted). This abundance of policy considerations simply goes to show the complexity of the issue faced by a jurisdiction’s judiciary that must decide.
-24- principals, the same Texas Court of Appeals in Dallas, and some of the same
Justices18 who decided Peeler I, also decided Hillcrest Equities, supra.
Hillcrest Equities was the firm where Carol Peeler worked. She and
her partners were not alone in engineering tax write-offs for wealthy investors.
Peeler II, 909 S.W.2d at 496. They worked with an accountant, Grant Thornton,
and Thornton’s firm. Hillcrest Equities, 1999 WL 621994, at *1. When Hillcrest
Equities sued Thornton for, among other things, contribution and indemnity,
Thornton claimed the Peeler Doctrine (the Texas Exoneration Rule) barred all the
claims. The trial court applied the doctrine and granted summary judgment to
Thornton. Id., at *2. Hillcrest Equities appealed.
The Texas Court of Appeals acknowledged “[t]his lawsuit arises out
of Hillcrest’s development and sale of a complex tax shelter program involving the
trade of government securities” violating federal tax laws and that Hillcrest
Equities’ principals pleaded guilty to the charges. Id., at *1, *2. The court
affirmed as to some claims after concluding they were “time barred.” Id., at *1.
However, the court “reverse[d] and remand[ed] to the trial court
Hillcrest’s claims for contribution and indemnity against appellees Grant Thornton
18 Texas refers to its Court of Appeals jurists as “Justice.” The presiding justice in Peeler I was Hon. John D. Ovard; the associate justices were Hon. Joseph B. Morris and Hon. Linda Thomas. Justice Morris presided and authored the opinion in Hillcrest Equities, Inc. v. Thornton, No. 05- 96-01280-CV, 1999 WL 621994 (Tex. Ct. App. Aug. 17, 1999). Justice Ovard was an associate justice in Hillcrest, and on this opinion, Ovard and Morris were joined by Hon. David L. Bridges.
-25- and Alexander Grant & Company . . . .” Id., at *1. The court expressly rejected
the argument that the Peeler Doctrine prevented these claims and reversed the
summary judgment. It was not a reversal based on genuine issues of material fact.
“Thornton could not establish as matter of law that Peeler applied to bar Hillcrest’s
contribution and indemnity claims.” Id., at *8 (emphasis added).
The Texas court refused to expand the scope of the Exoneration Rule
beyond criminal malpractice claims. We should demonstrate similar restraint.
While imposing the “sole-proximate-cause” element of a tort upon this category of
plaintiffs is justifiable vis-à-vis their former defense counsel, doing so is on far
more tenuous ground in any other context. The reasons are obvious.
Unique reasons for narrow application of Exoneration Rule
The Exoneration Rule loses all force when applied outside claims for
negligent criminal defense representation. Some policy considerations that weigh
in favor of the Exoneration Rule to bar criminal malpractice claims simply do not
affect claims against other professionals, like accountants. Those considerations
include: precluding an influx of frivolous suits brought by every prisoner with
time on his hands who was represented by a lawyer (effectively, all of them);
avoiding circumstances that might discourage criminal defense attorneys from
accepting new clients; and redundancy in a system already safeguarded by
-26- protections against mistaken convictions such as found in RCr19 11.42 authorizing
a claim that defense counsel was ineffective, and other post-conviction relief such
as CR 60.02. See footnote 10, supra. These considerations – considerations not
relevant to an action against a nonlawyer – impact the very justice system itself.
Kaisi’s claim illustrates another distinguishing factor. The attorney
who defended Kaisi was not engaged until after Kaisi was charged. He did not
advise Kaisi to commit the crime.20 By contrast, Kaisi engaged his accountants
long before he committed his crimes, and committed them based on his
accountants’ advice, if his averments are taken as true. Again, the unclean hands
doctrine is a much more comfortable fit to resolve this case.
A case-by-case inquiry as to proximate cause and cause-in-fact has
always been the rule for tort claims. Patton v. Bickford, 529 S.W.3d 717, 731 (Ky.
2016). The Exoneration Rule eliminates the need for such inquiry in criminal
malpractice claims because, based on considerations unique to criminal defense
attorneys, our Supreme Court made this specific public policy concession. The
Exoneration Rule is meant to apply only in this narrow circumstance.
19 Kentucky Rules of Criminal Procedure. 20 I acknowledge the result might be different under different circumstances such as when a lawyer advises his client prior to his client’s criminal activity and also serves as his defense counsel. That issue is not now, nor has it ever been before a Kentucky appellate court to my knowledge.
-27- For these reasons, I concur in the result reached by the majority
Opinion, but I cannot agree with its analysis. I would affirm solely by applying the
unclean hands doctrine.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Scott A. Simon Richard L. Masters Louisville, Kentucky Liam H. Michener Louisville Kentucky
-28-