RENDERED: DECEMBER 13, 2018 TO BE PUBLISHED
2017-SC-000531-DG
MEREDITH L. LAWRENCE, AND APPELLANTS MEREDITH L. LAWRENCE, P.S.C.
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-000510-MR GALLATIN CIRCUIT COURT NO. 15-CI-00113
BINGHAM, GREENEBAUM, DOLL, L.L.P.; APPELLEES J. RICHARD KIEFER; TALIFERRO CARRAN AND KEYS, P.L.L.C.; AND ROBERT CARRAN
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellants Meredith L. Lawrence and Meredith L. Lawrence, P.S.G.,
(Lawrence) appeal from a decision of the Court of Appeals which held that a
criminal defendant who has been convicted at trial and whose conviction has
not been overturned on appeal or through other post-conviction proceedings
may not maintain a legal malpractice action against his criminal defense
attorneys for alleged negligence occurring during the criminal defense
representation. The Appellees, Lawrence’s defense attorneys, are Bingham, Greenebaum, Doll, L.L.P.; J. Richard Kiefer; Robert Carran; and Taliferro,
Carran, 8s Keys, P.L.L.C.1
The Court of Appeals’ opinion is based upon a doctrine known as the
“Exoneration Rule” which has been previously applied by our Court of Appeals
but has never been addressed or adopted by this Court. We granted
discretionary review to consider the merits of the rule.
The Exoneration Rule provides that a criminal defense attorney may not
be sued for legal malpractice in a case resulting in the conviction of his or her
client unless the client has been exonerated by direct appeal or upon post
conviction relief. The rationale for the rule is that the sole cause of the
conviction is the criminal conduct of the client rather than the poor
performance of the defense counsel. Thus, absent subsequent exoneration, the
convicted defendant cannot establish that his attorney was the cause of his
conviction. The Exoneration Rule, with slight variations discussed below, is
the majority rule across the nation.
For the reasons stated below, we follow the lead of the Court of Appeals
and most of our sister-state jurisdictions in adopting the Exoneration Rule.
1 This date we have rendered another opinion involving these parties, 2017-SC- 000105-DG, reversing and remanding a Kenton Circuit Court decision by which that court set aside a default judgment against Lawrence. The default judgment arose from Bingham Greenbaum’s counterclaim to enforce Lawrence’s promissory note representing his obligation to pay attorney fees arising out of defense of the federal tax case. Lawrence had initiated the Kenton Circuit action alleging malpractice, which claim was dismissed without prejudice since the federal tax case was then still pending. This case is the re-filing of Lawrence’s malpractice claim.
2 Upon application of this rule to Lawrence’s legal malpractice claim, we affirm
the trial court’s dismissal of his claims against Appellees. Upon that
conclusion, we recognize Lawrence’s remaining claims on appeal as moot or
otherwise without merit.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lawrence was formerly an attorney and a member of the Kentucky Bar
Association. In 2012, he was found guilty in federal district court of violating
26 U.S.C. § 7206(1), a felony offense involving false and fraudulent tax returns
which Lawrence allegedly filed between 2004 and 2006. He was sentenced to
twenty-seven months in prison and ordered to pay $128,253 in restitution to
the United States Treasury.2
Lawrence’s conviction was affirmed on direct appeal. See U.S. v.
Lawrence, 557 Fed. Appx. 520 (6th Cir. 2014).3 Lawrence unsuccessfully
sought a new trial pursuant to Federal Rule of Criminal Procedure 33.4 U.S. v.
Lawrence, 2015 WL 428087 (E.D. Ky. 2015). He later filed a petition for
habeas corpus, seeking post-conviction relief in federal district court pursuant
to 28 U.S.C. § 2255.5 His petition was denied, and the district court denied a
2 As a result of his conviction Lawrence was disbarred from the practice of law in Kentucky. Kentucky Bar Assn. v. Meredith L. Lawrence, 2012-SC-000406-KB. 3 Rehearing was denied April 21, 2014. Petition for a writ of certiorari was denied October 6, 2014. Lawrence v. U.S., 135 S. Ct. 223 (2014). 4 FRCP 33 provides in part: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.” 5 28 U.S.C. § 2255 provides in part as follows: “(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released
3 certificate of appealability to the United States Sixth Circuit Court of Appeals.
U.S. v. Lawrence, 2016 WL 3212161 (E.D. Ky. 2016); U.S. v. Lawrence, 2016
WL 4803934 (E.D. Ky. 2016). He petitioned the Sixth Circuit for a certificate of
appealability, which was denied by Order entered April 4, 2017. See Lawrence
v. U.S., Case No. 16-5870 (6th Cir. April 4, 2017). Lawrence has now
exhausted all conventional post-conviction direct and collateral attacks against
his conviction.
In October 2015, while the federal litigation was still pending, Lawrence
filed a civil action in the Gallatin Circuit Court against the attorneys and law
firms that defended him in his federal court trial. His sole cause of action was
that his attorneys had committed professional negligence in their defense of his
criminal charges.6 The Complaint was entitled, “CAUSE OF ACTION
PROFESSIONAL NEGLIGENCE.” The complaint alleges that “the
representation provided by the defendants jointly and individually were [sic]
laced with professional negligence, gross negligence, breach of fiduciary duty,
breach of contract both express and implied, breach of professional failure to
observe the rules and order of the court and were intentionally reckless and
upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 6 The Complaint also named as a plaintiff Lawrence’s professional service corporation, Meredith Lawrence, P.S.C. The Complaint alleges solely the one count of professional negligence that relates to Lawrence’s individual alleged damages, thus the analysis is the same for both Lawrence and the P.S.C.
4 wanton with the representation of the defendants, including but not limited to
the violating the constitutional rights of the defendants.” More specifically, the
complaint alleged that Lawrence’s attorneys were negligent by failing to comply
with a scheduling order relating to the disclosure of expert witness testimony;
by failing to object to certain testimony presented at trial; and by failing to
move for a bill of particulars. This negligence, according to Lawrence’s
complaint, caused the “utter failure” of his trial defense and “subjected Mr.
Lawrence to ineffective assistance of counsel.”
Consistent with the results obtained in his post-conviction litigation,
Lawrence’s complaint does not allege that he has been exonerated or that his
conviction has been otherwise overturned. Instead, his complaint
demonstrates that he remains under conviction for the crimes.
Based upon the Exoneration Doctrine, the trial court granted Appellees’
motion to dismiss Lawrence’s complaint pursuant to CR 12.02(f), for failure to
state a claim upon which relief can be granted. The trial court also denied
Lawrence’s subsequent motions under CR 59 and 60 to alter, amend, or vacate
the dismissal. The Court of Appeals affirmed the trial court’s dismissal.
Lawrence identifies thirteen arguments for relief in the “Arguments”
section of his brief, some of which overlap. They include: (1) that Lawrence is
actually and factually innocent of the federal crimes charged; (2) that the
Appellees are collaterally estopped from asserting the Exoneration Rule
because their conduct was intentional and egregious; (3) that the Exoneration
Rule should not be applied where defense counsel willfully/intentionally
5 breaches his fiduciary duties owed to his client; (4) the Appellees should not be
able to rely upon the collateral estoppel effect of the federal habeas corpus
proceeding finding no ineffective assistance of counsel because the Appellees
failed to properly plead it in this case; (5) the Exoneration Doctrine and its
reliance on the ineffective assistance of counsel standard is not applicable to
his claims concerning fee disputes, intentional post-trial betrayal, violations of
Supreme Court Rules, fraud, and concealment; (6) his legal malpractice claims
should be allowed to proceed under the language of KRS 411.165, and that
KRS 411.165 preempts the Exoneration Rule; and (7) the doctrine is
inapplicable in cases of professional negligence where the attorney fee is
unreasonable, or when the attorney fails to provide his case file to his former
client.
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim upon which relief may be
granted under CR 12.02(f) “admits as true the material facts of the complaint.”
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). Therefore, a motion under the rule
should not be granted “unless it appears the pleading party would not be
entitled to relief under any set of facts which could be proved . . . .” Id. In
assessing the motion, “the pleadings should be liberally construed in the light
most favorable to the plaintiff, all allegations being taken as true.” Id.
This standard of review eliminates any need by the trial court to make
findings of fact because all the facts asserted in the complaint must be taken
as true. The question is purely a matter of law. Stated another way, the court
6 must ask if the facts alleged in the complaint can be proven, would the plaintiff
be entitled to relief? Id. Since the matter is purely a question of law, a
reviewing court owes no deference to a trial court’s determination. Accordingly,
we review the issue de novo.
III. ANALYSIS
KRS 411.165, titled “liability of attorney for professional negligence,”
establishes a statutory basis for malpractice suits against attorneys:
(1) If any attorney employed to attend to professional business neglects to attend to the business, after being paid anything for his services, or attends to the business negligently, he shall be liable to the client for all damages and costs sustained by reason thereof.
(2) If any attorney employed to attend to any professional business receives his fee and does not attend to the business, he may be sued and made to refund the fee.
In this instance we directly address for the first time the issue of whether
a criminal defendant who was convicted of a crime and whose conviction has
not been overturned on appeal or otherwise set aside by way of post-conviction
proceedings, may maintain a legal malpractice action against his trial attorney
for negligence in the presentation of the criminal defense. The Court of
Appeals has addressed the issue a number of times applying the Exoneration
Rule. See Ray v. Stone, 952 S.W.2d 220 (Ky. App. 1997) (the client must
establish his innocence before he can demonstrate that his attorney’s actions
were the proximate cause of his conviction and resulting damages); Stephens v.
Denison, 150 S.W.3d 80 (Ky. App. 2004) (exoneration is a pre-requisite for
maintaining client’s legal malpractice action against his defense counsel); and
7 the unpublished cases of Violett v. Milliken, 2006-CA-000303-MR, 2006 WL
3372523 (Ky. App. 2006) (“a criminal client suing counsel for legal negligence
must first establish his innocence in a criminal proceeding”) and McNeeley v.
Spencer, No. 1999-CA-003017-MR, 2002 WL 31126910 (Ky. App. 2002).
Upon review, we agree with the rationale and public policy considerations
underlying the rule. Consequently, we agree with the trial court that the
Appellants’ complaint was properly dismissed without prejudice.
The Exoneration Doctrine
A legal malpractice claim in Kentucky requires a plaintiff to prove:
(1) an employment relationship between the plaintiff and the attorney; (2) the
attorney neglected his or her duty to exercise the ordinary care that a
reasonably competent attorney acting in the same or similar circumstances
would exercise and; (3) the attorney’s negligence was the proximate cause of
the plaintiffs damages. Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky. 2003) (citing
Stephens v. Denison, 64 S.W.3d 297, 298-99 (Ky. App. 2001)). “In this context,
proximate cause involves a ‘but for’ determination, i.e., but for the attorney’s
malfeasance, the client— read: defendant—would not have been convicted.”
U.S., ex rel. U.S. Attorneys ex rel. Eastern, Western Districts of Kentucky v.
Kentucky Bar Assn., 439 S.W.3d 136, 156 (Ky. 2014).
It is the “but for” causation element of a legal malpractice case that
provides the most important justification for the Exoneration Rule. A criminal
defendant’s own actions constitute the “sole, proximate, and producing cause
of the indictment, conviction, and resultant incarceration.” Stone, 952 S.W.2d
8 at 224. Because the defendant’s own actions are deemed to be the exclusive
proximate cause of his injury, public policy prohibits him from maintaining a
legal malpractice action against his criminal defense attorneys unless he has
been subsequently exonerated. Id.
Although, as noted, we have not heretofore upheld the Exoneration Rule
in Kentucky, a favorable mention of the rule can be found in dicta in U. S.
Attorneys, 439 S.W.3d at 156. There, we addressed the legal implications of
allowing a defendant to waive his or her ineffective assistance of counsel claims
by post-conviction litigation in exchange for a guilty plea. Our ruling in the
case is consistent with the Exoneration Rule; we said in dicta:
Admittedly, in Kentucky, the viability of a malpractice claim following a guilty plea is in doubt. Saving a lengthy discussion of our malpractice landscape, suffice it to say that without having his conviction overturned, a defendant’s attempt at proving proximate cause becomes extraordinarily difficult, virtually impossible.
U.S. Attorneys, 439 S.W.3d at 156.
Over twenty years ago, in Ray v. Stone, 952 S.W.2d 220 (Ky. App. 1997),
the Court of Appeals applied the Exoneration Rule, emphasizing the causation
element. In Ray, the defendant pled guilty to a drug trafficking charge and was
unsuccessful in his subsequent post-conviction appeals. He eventually filed a
legal malpractice action against his criminal defense attorney alleging negligent
representation. Relying heavily upon the influential Texas case,
Peeler v. Hughes & Luce, 868 S.W.2d 823, 832 (Tex. App. 1993), the Court of
Appeals held that Ray was collaterally estopped from litigating the issue of his
innocence because he had pleaded guilty to the crimes, and he had not
9 received any post-conviction relief for ineffective assistance of counsel. 952
S.W.2d at 223-24; see also Carmel v. Lunney, 119 A.D.2d 50 (N.Y. App. Div. 3d
Dept. 1986); Hockett v. Breunig, 526 N.E.2d 995 (Ind. App. 1988).
In applying the Exoneration Rule, the Court in Ray referenced the public
policy consideration that prohibits a defendant from enjoying financial gains,
either directly or indirectly, as a result of his criminal acts. “There being no
fact question concerning his innocence, public policy compels us to conclude
that any acts or omissions by attorney Stone are not the cause of Ray’s alleged
damages.” 952 S.W.2d at 224. Ray holds that the plaintiff’s “own unlawful
conduct” was “the sole, proximate, and producing cause of the indictment,
conviction, and resultant incarceration.” Id. Ray further holds that to prove
an attorney’s actions were the proximate cause of a criminal defendant’s
injuries, “the plaintiff must establish his innocence.” The Court held that Ray’s
guilty plea vitiated any claim of innocence, that Ray could not therefore prove
proximate causation and that Ray should not be permitted to profit off of his
own wrongdoing. Id.
Ray illustrates the public policy concerns at issue, but Ray involved a
guilty plea in which the criminal defendant/malpractice case plaintiff admitted
his own guilt in open court. Lawrence did not admit his guilt by pleading
guilty, so Ray is somewhat distinguishable. However, we are persuaded that
no sound reason exists to apply one rule for criminal defendants who plead
guilty and a different rule for those found guilty beyond a reasonable doubt by
a jury. We are persuaded that the rationale and public policy considerations
10 identified in Ray are likewise applicable in a jury-verdict case and that the
relative positions of the guilty plea defendant and jury-verdict defendant are
substantially identical insofar as the Exoneration Rule is concerned.
In Stephens v. Denison, 150 S.W.3d 80 (Ky. App. 2004), the Court of
Appeals faced a factual scenario similar to the case now before us. The
defendant in Stephens was convicted after a jury trial and sentenced to
imprisonment for twenty years. His conviction was upheld on direct appeal.
Stephens then filed a legal malpractice suit against his attorney claiming his
attorney failed to notify him about a plea offer “until it was too late to accept
it,” and that his attorney “was under the influence of cocaine during the trial.”
Id. at 81.
The trial court granted summary judgment to Stephens’ former attorney
because Stephens had no expert testimony to support his legal
malpractice claim. Id. at 82. On appeal, the Court of Appeals rejected the trial
court’s rationale for the dismissal and instead affirmed the judgment based
upon application of the Exoneration Rule. Stephens could not demonstrate
that he had been exonerated, and so, he could not maintain his malpractice
claim.
The Stephens’ court relied heavily upon Canaan v. Bartee, 72 P.3d 911
(Kan. 2003). In Canaan, the Kansas Supreme Court surveyed the state court
decisions and observed that most state courts require that a criminal
defendant asserting a claim of legal malpractice against his or her defense
11 lawyer establish exoneration by post-conviction relief or actual innocence. Id.
at 915-16.
Canaan also notes, in addition to the causation issue noted above, other
rationales, which have been identified in support of the Exoneration Rule, some
of which overlap:
Various policies or justifications have been stated for the exoneration rule, including: equitable principles against shifting responsibility for the consequences of the criminal’s action; the paradoxical difficulties of awarding damages to a guilty person; theoretical and practical difficulties of proving causation; the potential undermining of the postconviction process if a legal malpractice action overrules the judgments entered in the postconviction proceedings; preserving judicial economy by avoiding relitigation of settled matters; creation of a bright line rule determining when the statute of limitations runs on the malpractice action; availability of alternative postconviction remedies; and the chilling effect on thorough defense lawyering.
Id. at 123 (citations omitted). See also, e.g., Coscia v. McKenna & Cuneo, 25
P.3d 670, 673 (Cal. 2001); Hicks v. Nunnery, 643 N.W.2d 809, 824 (Wis. App.
2002); Humphries v. Detch, 712 S.E.2d 795 (W. Va. 2011); Ang v. Martin, 114
P.3d 637 (Wash. 2005) (en banc); Steele v. Kehoe, 747 So. 2d 931, 933 (Fla.
1999) Shaw v. State, Dept. of Admin., Public Def. Agency, 816 P.2d 1358, 1361
(Alaska 1991); Glenn v. Aiken, 569 N.E.2d 783, 788 (Mass. 1991)); Peeler v.
Hughes and Luce, 909 S.W.2d 494 (Tex. 1995).
Canaan also notes several jurisdictions have not adopted the
Exoneration Rule but have criticized or rejected the rule. 72 P.3d at 918.
Among those states are Alabama (Mylar v. Wilkinson, 435 So. 2d 1237 (Ala.
1983)); Indiana (Silvers v. Brodeur, 682 N.E.2d 811, 818 (Ind. App. 1997));
12 Michigan (Gebhardt v. O'Rourke, 510 N.W.2d 900 (Mich. 1994)); New Mexico
(Duncan v. Campbell, 936 P.2d 863 (N.M. App. 1997)); and Ohio (Krahn v.
Kinney, 538 N.E.2d 1058 (Ohio 1989)).
Upon consideration of the arguments presented herein, the public policy
considerations identified above, 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, we recognize and adopt the Exoneration Rule
as a defense in legal malpractice actions in this jurisdiction. Nevertheless, as
alluded to above, there are slight variations of the rule that have developed in
terms of defining the threshold level of exoneration which a plaintiff must plead
in order to proceed with a legal malpractice claim in the context of a criminal
defense.
Among the jurisdictions that have adopted the Exoneration Rule, three
different standards are used to define the plaintiffs burden. Some states
require the plaintiff to demonstrate exoneration through a successful appeal or
by post-conviction relief collaterally attacking the conviction. Some states
require the plaintiff demonstrate exoneration by appeal or post-conviction
relief, and in addition, establish actual innocence. See Gibson v. Trant, 58
S.W.3d 103, 108-09 (Tenn. 2001) (collecting cases). Some states allow the
plaintiffs claim to proceed by showing either exoneration through appeal or
post-conviction relief, or in the alternative, actual innocence. Id. Of these
variations, we believe the first option best implements the objectives of the rule.
13 We are persuaded that requiring the plaintiff to show exoneration upon
direct appeal or a successful collateral attack on the conviction through post
conviction proceedings satisfies the rule. Proof of actual innocence imposes an
undue burden as it is ordinarily difficult to prove a negative. Moreover, the
criminal defendant in the underlying case, in which the alleged malpractice
occurred, is not required to prove actual innocence; a criminal defendant is
entitled to an acquittal when there is a reasonable doubt about his guilt.
We further believe that the option allowing a plaintiff who has not been
exonerated through direct appeal or collateral attack to maintain an action for
malpractice against his defense attorney would lead to a re-litigation of the
criminal case before the jury in the civil malpractice case. We are confident
that Kentucky’s right to appeal and post-conviction proceedings, along with the
availability of federal habeas corpus remedies, provide an efficient and
complete structure for obtaining exoneration following an unjust criminal
conviction in the event of actual innocence. A plaintiff, who was actually
innocent of charges for which he was wrongfully convicted because of his
attorney’s malpractice, has ample means of establishing the elements essential
to the filing of a legal malpractice action.
In summary, 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
14 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.
Because Lawrence failed to allege that he had been exonerated of his
convictions through post-conviction proceedings, the trial court correctly
dismissed his legal malpractice claim without prejudice.
IV. OTHER ISSUES
As noted above, Lawrence also raises other issues. We have examined
his remaining arguments. We are satisfied that those arguments are totally
without merit or rendered moot upon our adoption of the Exoneration Rule.
The Exoneration Rule applies only to professional malpractice claims.
Appellants concern relating to fee disputes is unfounded because that issue
relates to contractual matters and thus is not affected by the Exoneration Rule.
Lawrence also claims that the trial court should not have dismissed his
intentional infliction of emotional distress and other claims against the
Appellees. Our examination of Lawrence’s complaint demonstrates that he
alleged only a single cause of action: professional negligence. It follows that his
ancillary claims all stem from the same professional negligence claim, a claim
that, as explained above, fails due to the lack of exoneration. See Abel v.
Austin, 411 S.W.3d 728, 737-38 (Ky. 2013).
Finally, Lawrence claims the judge erred by converting a motion to
dismiss into a motion for summary judgment and not permitting a reasonable
15 opportunity for discovery. This claim likewise fails, as it is apparent from the
face of his complaint that the case was properly dismissed without prejudice
and no resort to extrinsic evidence was required.
V. CONCLUSION
For the reasons stated above, the decision of the Court of Appeals is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANTS MEREDITH L. LAWRENCE, P.S.C. AND MEREDITH L. LAWRENCE:
Brandy Lawrence Meredith L. Lawrence
COUNSEL FOR APPELLEES BINGHAM, GREENEBAUM, DOLL, L.L.P., AND J. RICHARD KIEFER:
Beverly Ruth Storm Arnzen, Storm & Turner, P.S.C.
COUNSEL FOR APPELLEES TALIFERRO CARRAN AND KEYS, PLLC, AND ROBERT CARRAN:
Jeffrey C. Mando Adams, Stepner, Woltermann & Dusing, PLLC