Lynch v. Warwick

115 Cal. Rptr. 2d 391, 95 Cal. App. 4th 267, 2002 Cal. Daily Op. Serv. 473, 2002 Daily Journal DAR 603, 2002 Cal. App. LEXIS 357

• Court: California Court of Appeal
• Decided: January 16, 2002
• Docket: D035507
• Status: Published

Opinions

Opinion

KREMER, P. J.

Thomas J. Lynch, Jr. appeals a summary judgment and order denying his motion to vacate the judgment on his action for legal malpractice, breach of contract and breach of fiduciary duty against his former criminal defense attorney, Thomas J. Warwick, Jr. Lynch contends the trial court erred in finding that he was required to establish his actual innocence of the underlying criminal charges in order to pursue his claims against Warwick. We affirm.

Facts

In July 1995 Lynch retained Warwick to represent him in several criminal matters, paying Warwick a fee of $17,500. The day before Lynch’s trial, Warwick advised Lynch to plead guilty. Lynch insisted on going to trial, retained new counsel the next day at a cost of $20,000, and obtained a continuance of the trial date. Ultimately, upon the advice of the second attorney, Lynch pleaded guilty to charges of kidnapping and assault with a deadly weapon.

In 1998 Lynch filed a complaint against Warwick containing causes of action for legal malpractice, breach of contract and breach of fiduciary duty. As amended, the causes of action were based on Warwick’s alleged failure to perform the professional services for which he was retained. Lynch alleged that Warwick failed to interview key witnesses, unnecessarily sought continuances, failed to prevent the loss or destruction of evidence, failed to develop a working relationship of trust and confidence with him, and failed to adequately communicate with him about the case.

As damages, Lynch sought in his negligence cause of action to recover the amount of money he had paid to the second retained attorney; in his breach of contract action, sought to recover the $17,500 he had paid to Warwick; and in his breach of fiduciary duty cause of action, sought general and punitive damages.

Warwick moved for summary judgment on the ground that Lynch had failed to establish negligence by failing to designate an expert witness and on the ground Lynch failed to establish his actual innocence of the criminal charges. The court granted summary judgment on Lynch’s failure to establish actual innocence and denied Lynch’s subsequent motions for reconsideration and to vacate the judgment.

Discussion

Lynch argues the actual innocence requirement for a legal malpractice suit against a former criminal defense attorney does not apply here because he is seeking out-of-pocket expenses unrelated to guilt or innocence.¹

Generally, the elements of a legal malpractice action are: “(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 [108 Cal.Rptr.2d 471, 25 P.3d 670].) In a legal malpractice case arising out of a criminal proceeding, California, like most jurisdictions, also requires, as a “necessary element,” proof of actual innocence. (Id. at pp. 1197, 1200; Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545 [79 Cal.Rptr.2d 672, 966 P.2d 983] (Wiley).) The actual innocence requirement “applies to legal malpractice claims asserted against both private attorneys and public defenders.” (Barner v. Leeds (2000) 24 Cal.4th 676, 679 [102 Cal.Rptr.2d 97, 13 P.3d 704].)

In Wiley, the Supreme Court explained the actual innocence requirement was justified by policies against allowing an individual “ ‘ “to profit by his own fraud, or to take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime.” ’ ” (Wiley, supra, 19 Cal.4th 532, 537.) The Wiley court observed that “ ‘allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict.’ ” (Ibid.) Wiley made it clear that “[o]nly an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss.” (Id. at p. 539.) The Wiley court further explained: “ ‘The guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result (just as he has no right to have the jury nullify the law, though juries sometimes do that), and the law provides no relief if the “right” is denied him.’ [Citation.] Moreover, ‘[t]he underpinnings of common law tort liability, compensation and deterrence, do not support a rule that allows recovery to one who is guilty of the underlying criminal charge. A person who is guilty need not be compensated for what happened to him as a result of his former attorney’s negligence. There is no reason to compensate such a person, rewarding him indirectly for his crime.’ ” (Id., at pp. 543-544.)

The Wiley court’s actual innocence requirement also rested on key differences between civil and criminal actions. The court observed that, unlike a criminal case where the defendant has recourse to postconviction relief, “a civil matter lost through an attorney’s negligence is lost forever" and the civil litigant, unlike the criminal defendant, “has no recourse other than a malpractice claim.” (Wiley, supra, 19 Cal.4th 532, 543.) The Wiley court further noted:

“Reinforcing this conclusion [that a criminal malpractice action requires a showing of actual innocence] are the pragmatic difficulties that would arise from simply overlaying criminal malpractice actions with the civil malpractice template. In civil actions, carrying the burden on causation is relatively straightforward and comprehensible for the jury, even if it necessitates a ‘trial within a trial.’ The factual issues in the underlying action are resolved according to the same burden of proof, and the same evidentiary rules apply. Thus, it is reasonably possible for the malpractice jury to assess whether and to what extent counsel’s professional lapse compromised a meritorious claim or defense. [Citation.]

“By contrast, ‘the prospect of retrying a criminal prosecution [is] “something one would not contemplate with equanimity ....’” [Citations.] The procedure outlined in Shaw v. State, Dept, of Admin. [(Alaska 1993)] 861 P.2d [566,] 573, suggests this estimation is not exaggerated: ‘[T]he standard of proof will be a complex one, in essence, a standard within a standard. [Plaintiff] must prove by a preponderance of the evidence that, but for the negligence of his attorney, the jury could not have found him guilty beyond a reasonable doubt.’ [Citations.] Moreover, while the plaintiff would be limited to evidence admissible in the criminal trial, the defendant attorney could introduce additional evidence, including ‘any and all confidential communications, as well as otherwise suppressible evidence of factual guilt.’ [Citations.] The mental gymnastics required to reach an intelligent verdict would be difficult to comprehend much less execute. [Citations.] Avoiding such a procedure is also consistent with ‘ “a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.” [Citation.]’ ” (Wiley, supra, 19 Cal.4th at p. 544.)

Finally, the Wiley court observed: “Tort damages are in most cases fungible in the sense that the plaintiff seeks in a malpractice action exactly what was lost through counsel’s negligence: money. ‘Damages’ in criminal malpractice are difficult to quantify under any circumstances. Calculating them when, for example, counsel’s incompetence causes a longer sentence would be all the more perplexing.” (Wiley, supra, 19 Cal.4th 532, 543.)

Lynch claims that Wiley is distinguishable because “guilt or innocence is not relevant to the instant matter,” he is not suing for being wrongfully convicted or receiving a longer sentence (as was at issue in Wiley and the cases upon which Wiley relied), and Warwick was not his attorney when he pleaded guilty. We are unpersuaded.

Lynch’s guilt or innocence is relevant in this case. Lynch’s claims rest on the assertion that he had meritorious defenses, that had Warwick “exercised proper care, skill and diligence,” Lynch “would have received a proper or reasonable defense with respect to the underlying criminal charges,” and Lynch would not have been “forced to fire [Warwick] and retain other legal counsel at the ‘eleventh hour.’ ” To the extent Lynch’s claim is based on a loss of meritorious defenses, clearly guilt and innocence are at issue: an innocent person is one who has a meritorious defense to the charges while a guilty person is one who lacks a meritorious defense. To establish Warwick’s conduct resulted in the loss of a meritorious defense, Lynch’s guilt or innocence would be litigated. To rebut Lynch’s claims as to lack of a meritorious defense and negligence, Warwick would be entitled to put on evidence establishing Lynch’s guilt, the reasonableness of his investigation and conduct in light of Lynch’s guilt. Warwick would be entitled to put on evidence that he advised Lynch to plead guilty not because Warwick had failed to conduct a sufficient investigation or was unprepared for trial but because Lynch was, in fact, guilty and had no meritorious defense to the charges. As to Lynch’s claimed damages for having to retain a second attorney (who advised him to plead guilty), guilt or innocence would be at issue since if Lynch were guilty, lacked any meritorious defenses, or was reasonably advised by Warwick to plead guilty, it could not be said that Warwick was the cause of Lynch’s incurring the expense of a second attorney. Rather, the cause of the additional expense would have been Lynch’s failure to earlier plead guilty as advised by Warwick.

Further, in violation of one of the policies identified in Wiley, Lynch is seeking to shift blame; he is seeking to blame Warwick for his lack of a meritorious defense, for his second retained counsel’s advice to plead guilty and his guilty plea rather than accepting his responsibility for having committed the crimes. Without a showing of actual innocence, the fact that Warwick could have conducted a more thorough investigation or have communicated more with Lynch fails to establish that Warwick’s negligence resulted in any harm, including the need to retain a second attorney.

Furthermore, Lynch’s claim that he lost meritorious defenses as a result of Warwick’s incompetence is contradicted by the fact Lynch pleaded guilty and thereby admitted he had no meritorious defenses and was, in fact, guilty of the charges.

The dissent suggests that Lynch’s claim for attorney fees he paid to Warwick is a breach of contract case not covered by Wiley. Contract law exists to enforce the intentions of the parties to an agreement while tort law is designed to vindicate social policy. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683 [254 Cal.Rptr. 211, 765 P.2d 373].) A “wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 139, pp. 203-204.)” North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [69 Cal.Rptr.2d 466].) “ ‘[A] cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed ....’” (Perry v. Robertson (1988) 201 Cal.App.3d 333, 340 [247 Cal.Rptr. 74].)

Here, although he seeks a contractual-type damage (out-of-pocket expenses for attorney fees) and labels his cause of action as a breach of contract, Lynch is actually seeking recovery on a tort theory for Warwick’s negligence, i.e., Lynch is seeking recovery for legal malpractice. Our Supreme Court has made it clear that a legal malpractice action against a former criminal attorney requires a showing of actual innocence. (See also Mahoney v. Shaheen, Cappiello, Stein & Gordon (1999) 143 N.H. 491, 498 [727 A.2d 996, 1000] [holding the actual innocence requirement applies when damages are sought for contempt fines and attorney fees related to a criminal proceeding].)

Further, the fact that Lynch is seeking out-of-pocket expenses, i.e., attorney fees, does not readily distinguish Lynch’s case from other criminal malpractice actions. Seeking attorney fees incurred in a legal malpractice action due to the prior attorney’s negligence is a typical item of damages. (See California State Auto. Assn. Inter-Ins. Bureau v. Parichan, Renberg, Crossman & Harvey (2000) 84 Cal.App.4th 702, 713 [101 Cal.Rptr.2d 72]; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 910 [274 Cal.Rptr. 186]; Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 303 [98 Cal.Rptr. 547].) Undoubtedly, criminal malpractice actions involving retained counsel would involve a claim for attorney fees and yet the Supreme Court did not create any exception for attorney fee damages.

Additionally, like cases involving an avoidable conviction or longer sentence, Lynch’s claim of attorney malpractice, while couched in terms of breach of contract, is integrally involved with guilt or innocence and his case would give rise to the proof problems noted by the Supreme Court in Wiley. Lynch’s trial would require the jury to engage in the “mental gymnastics” the Wiley court sought to avoid. Here, while Lynch may be seeking “quantifiable, out-of-pocket losses,” his criminal malpractice trial will involve the same difficulties in proving causation as exist in cases where the complaint is related to a wrongful conviction or longer sentence. Indeed, proof may be even more difficult and convoluted in this case. For example, in his claim to recover fees paid to the second retained attorney, Lynch will have to prove that not only was Warwick negligent, but also that his second attorney was not negligent and that there was no unnecessary duplication of effort. Warwick would be permitted to introduce evidence showing Lynch was guilty, had no viable defense, and should not have hired a second attorney but rather should have pleaded guilty at an earlier date. As to seeking reimbursement for fees paid to Warwick, the proof would be less convoluted but even so, issues of guilt and innocence would arise in the context of determining whether Warwick was negligent. As noted in Wiley, the jury would be faced with applying a preponderance of the evidence standard to issues involving a reasonable doubt standard.

The dissent expresses concern that if “proof of actual innocence [were] required under these circumstances, a criminal defense attorney could collect a large retainer fee from a client and neglect the client’s case with impunity if the client could not prove actual innocence.” (Dis. opn., post, at p. 279.) The dissent’s concern was addressed to some extent in Wiley. In Wiley, the court observed there would be situations where the criminal defense attorney was clearly negligent, such as when the attorney failed to raise a technical defense that would have resulted in a complete dismissal of the case, and yet the Supreme Court held the actual innocence requirement applied in these circumstances. (Wiley, supra, 19 Cal.4th 532, 540-543.)

Moreover, there are remedies other than a legal malpractice action to preclude criminal defense attorneys from collecting large retainer fees and then neglecting a Ghent’s case. Such an attorney could be reported to the State Bar and be subject to discipline. (See Bus. & Prof. Code, § 6106 [moral turpitude, dishonesty or corruption irrespective of criminal conviction].) Additionally, to the extent the criminal defendant (or other individual who paid the retainer fee) has a dispute with the attorney about fees because the attorney has abandoned the client (versus making disputed tactical decisions about how to try the case), the attorney fee issue could be arbitrated by the State Bar (see id., § 6200 et seq.).²

We conclude the actual innocence requirement for a criminal legal malpractice case applies regardless of whether the former criminal defendant is seeking damages for a wrongful conviction, a longer sentence, or for attorney fees.

Because we have concluded that summary judgment was properly granted on the ground that Lynch failed to raise a triable issue of fact as to the required actual innocence element of a legal malpractice action against a former criminal defense attorney, we need not discuss whether summary judgment was also justified on the basis of Lynch’s failure to designate an expert.

Disposition

The judgment and order are affirmed.

Benke, J., concurred.

1 Lynch’s complaint lists three causes of action—negligence, breach of contract, and breach of fiduciary duty. All three causes of action seek damages (attorney fees paid either to Warwick or to the attorney hired to replace Warwick) based on Warwick’s negligent or inadequate representation and, thus, while titled differently, all three causes of action seek recovery for legal malpractice.

2 Here, Lynch’s allegations and his declarations are not based on Warwick’s abandonment, but on a claim that Warwick’s performance was negligent.