# Bailey v. Tucker

> Supreme Court of Pennsylvania · February 26, 1993 · 533 Pa. 237

URL: https://www.frixlaw.com/law-library/cases/9634703

## Case

- **Full name:** Clarence BAILEY, A/K/A Clarence W. Bailey and Charles E. Bailey, Appellants, v. Robert E. TUCKER, and Daniel M. Berger, Appellees; Gregory TRICE, Appellant, v. Robert B. MOZENTER, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 26, 1993
- **Citations:** 533 Pa. 237; 621 A.2d 108; 61 U.S.L.W. 2595; 1993 Pa. LEXIS 60
- **Precedential status:** Published
- **Opinion:** Concurrence by Zappala
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 163 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by Lefta Associates v. Hurley, 902 F. Supp. 2d 559 (2012).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634703

## How later opinions describe it (automated extraction)

- explaining that, to state a claim for legal malpractice under Pennsylvania law, an aggrieved client must allege that: (1) the parties were in an attorney-client relationship; (2) the attorney failed to exercise ordinary skill or knowledge; and (3) the attorney’s failure to exe…
- holding that statute of limitations on criminal malpractice complaint began to run when defendant filed a post-conviction petition alleging ineffective assistance of counsel because, by that point, he was “clearly on notice of [his attorney’s] alleged dereliction”
- recognizing validity of appellee’s contention that availability of actions by defendants against their former attorneys would provide powerful disincentive to practitioners to continue in field of criminal defense representation
- discussing the difference between legal malpractice and breach of contract claims against a criminal defense attorney, and holding that, to establish legal malpractice in this context one must establish that “but for” his attorney’s negligence, he would have obtained an acquit…
- stating that for purposes of criminal legal malpractice actions, a defendant becomes aware of the harm suffered upon termination of the attorney-client relationship

## Opinion text

ZAPPALA, Justice,
concurring.
I concur in the Court’s judgment affirming the orders of the courts below, which held these actions time barred. I also agree that the limitations period for actions such as these begins to run when the attorney ceases to represent the client in the matter in which the malpractice is alleged to have occurred. However, I do not believe the majority has offered sound reasons for adopting different elements for these actions than are applicable in other negligence/malpractice cases. Especially troubling is the decision to fashion a higher degree of culpability.
When the Court first granted review of these cases, the sole question presented and disputed by the parties here and in the courts below was when the limitations periods began to run and, accordingly, whether the actions had been timely filed. No one advanced the proposition that the complaints failed to state causes of action upon which relief could be granted, nor did anyone argue that the elements of the actions were anything other than the standard elements of any complaint in trespass asserting negligence. Furthermore, when this Court ordered reargument sua sponte, we asked the parties to address a single question, whether immunity for attorney malpractice in a criminal setting should be adopted as the law of this Commonwealth. Nothing in this question hints of the possibility that the malpractice action against a criminal defense attorney might be refashioned with different elements. To the extent that the Majority Opinion goes beyond the questions presented, it suffers from the usual failings of an advisory opinion and from the additional defect of not being informed by the presentations of counsel. To the extent that the question posed by the Court created a context in which it became possible to advance this approach as a “middle ground,” I regret having acceded to the order for reargument.
*256 As stated by the majority, on the issue of creating an immunity for criminal defense attorneys, the Appellees make a number of public policy arguments in favor of recognizing immunity. Malpractice actions, it is said, encourage an undesirable duplicity of legal proceedings. Civil juries should not be permitted to speculate as to how the outcome of a criminal trial might have been different but for the defense attorney’s negligent representation. Moreover the potential for civil liability may have a chilling effect on attorneys, perhaps to the extent of impinging on the constitutional right to counsel. Some, it is argued, will be discouraged from engaging in representation of criminal defendants, either from fear of liability or from inability to obtain malpractice insurance at affordable rates. Others might be affected in the exercise of their professional discretion, choosing strategy by weighing not only the client’s best interests but also the possible impact on the attorney’s own potential liability. The availability of post-conviction review of criminal proceedings and disciplinary actions against errant attorneys are also argued to be sufficient correctives.
The Appellants respond that it would be inappropriate to adopt a new type of immunity not recognized at common law. The trend, it is noted, has been to restrict common law immunities, not expánd them. Ayala v. Philadelphia Board of Public Education, 453 Pa. 584 , 305 A.2d 877 (1973). It is also suggested that the creation of a new type of immunity may be beyond this Court’s authority, it being for the legislature to determine the need for such changes based on legislative findings and determinations of public policy. 1 Cf, Com *257 monwealth v. Johnson, 507 Pa. 27 , 487 A.2d 1320 (1985) (court has no inherent power to grant immunity from prosecution, which is controlled by statute). The Appellants also note that there has been no dearth of criminal defense attorneys or public defenders because of fear of civil liability, nor is there a problem with litigation such as would justify changing the status of the law. Further, it is argued that any difficulties posed by the overlap of post-conviction remedies and malpractice actions can be resolved through evidentiary and procedural rulings, instead of the drastic preclusion of suit altogether.
The majority concludes that none of the arguments put forward by the appellees supports the creation of an immunity, but determines that some of these policy considerations weigh in favor of recognizing different standards. Specific citation is made to the argument that “if the threat of malpractice looms over the representation of a criminal defendant the result will be a diminution of counsels’ willingness to exercise independent legal judgment, to be replaced by a defensive mindset geared more toward avoiding malpractice, and less toward obtaining acquittals.” Opinion at 249, 621 A.2d at 114. The majority also points to the claim that “the availability of actions by defendants against their former attorneys will provide a powerful disincentive to practitioners in the field to continue in that field; the proliferation of such suits will certainly increase insurance premiums for such practitioners; and such costs will ultimately be passed on to the system at large because there will be fewer attorneys to represent a greater number of clients, and the cost of retaining such attorneys will inevitably rise.” Opinion at 249-50, 621 A.2d at 114. After setting out these policy arguments, which are identified as “substantial and important to the entire system charged with the administration of criminal law,” the majority makes the quantum leap to the conclusion that a different standard of culpability, “reckless or wanton disregard of the defendant’s interests on the part of the attorney,” should be applicable.
*258 The same arguments about increased litigation, nuisance suits, malpractice insurance rates, etc., can be, indeed have been máde about any and every other profession. Likewise with the arguments that such actions have a chilling effect on practitioners. It has been reported, for example, that the potential for malpractice litigation, and accompanying increases in insurance costs, in some of the medical specialties has led some doctors to give up or severely limit their practice, leading to shortages of specialists, and that many doctors practice “defensive medicine,” ordering tests and procedures not because they believe them necessary but to avoid later charges of malpractice, thereby greatly increasing medical costs.
To declare for reasons such as these that a lawyer’s conduct should be examined against a degree of culpability greater than that applied in any other negligence case, the Court must implicitly make the unseemly and unsubstantiated finding that an attorney’s function in a criminal trial is somehow more important, more in need of protection, than the work of other professionals. This decision will be roundly and justly condemned as an example of the legal system “protecting its own,” and with impunity because, after all, it is the lawyers who make and enforce the rules of the game.
The majority makes the additional observation that a criminal defendant and a civil client occupy different positions vis-avis their attorneys, the former being protected by “systemic rights and privileges” from abuses of the system and deficient representation. Presumably, the point is that since the criminal defendant has means available to redress the harm other than resorting to an action against his attorney, there is less need for such actions. Again, whatever the validity of this point, it does not support the conclusion that a different standard of culpability is appropriate. It does no more than point up the fact that unlike other injuries, the separate remedies for the harms involved with legal malpractice are all within the realm of the justice system. One claiming physical harm as a result of medical malpractice must seek further medical help to correct the physical haim; to vindicate his *259 right not to have been inflicted with the harm in the first place, he must seek redress in the legal forum. A person claiming that attorney misfeasance caused his incarceration will attempt to correct the harm itself by pursuing legal challenges to the judgment of sentence; he may separately attempt to vindicate his right never to have been subject to imprisonment at all by proceeding against the attorney who caused the harm. That the correctives for the harms are both within the judicial arena, however, does not alter the nature of the claims. Nor should it alter the standards by which the claims are judged.
As to the elements necessary to prove a cause of action against an attorney for malpractice in conducting a criminal defense, I would approve the analysis developed by the Superior Court, under which attorney malpractice claims are treated in the same manner as other claims of professional negligence, and bear the traditional elements of a general claim of negligence — duty, breach, causation, and damages. I would hold that a plaintiff must show
1) The employment of the attorney or other basis for duty;
2) The failure of the attorney to exercise ordinary skill and knowledge; and
3) That such negligence was the proximate cause of damage to the plaintiff.
Sehenkel v. Monheit, 266 Pa.Super. 396 , 405 A.2d 493 (1979).
The proof of actual damages in most cases will require the plaintiff to establish that he or she would have been successful in the underlying action had the attorney not been negligent. This is a far cry, however, from the majority’s argument that the plaintiff “must prove that he is innocent of the crime or any lesser included offense.” Opinion at 247, 621 A.2d at 113. 2
*260 On the question of commencement of the limitation period, Bailey would have us hold that the limitation period began to run no earlier than November 10,1978, the date he was found guilty of the lesser crime of voluntary manslaughter following retrial, and perhaps as late as December 20, 1978, when he was released from prison. According to Bailey, no cause of action could accrue until his damages were ascertained or reasonably ascertainable in fact. Defining the harm to him as being his wrongful, excessive incarceration, Bailey contends that not until the second jury had rendered a verdict was it certain that the first jury’s verdict and the sentence imposed on it were wrongful or excessive.
In a similar vein, Bailey argues that any action brought prior to the second trial’s conclusion would have been barred by collateral estoppel of record. According to this argument, so long as a judgment of sentence remained on the record, entitled to a presumption of validity and regularity, it could not be questioned in a civil action; otherwise the civil jury would be called on to second guess the criminal jury, and the criminal judgment would be deprived of its finality and integrity. ■
Trice’s primary argument is similar to this latter argument, although not phrased in terms of collateral estoppel. Trice submits that as a matter of policy we should hold that the *261 statute of limitation is tolled, or the action does not accrue, until the final resolution of the matters pertaining to the underlying case. This would eliminate the incongruity of having a person against whom a valid judgment of sentence exists trying to persuade a civil jury that the conviction is invalid.
Trice also suggests that the discovery rule should be applicable to actions like these, and that insofar as the discovery rule raises an issue of fact, judgment on the pleadings in his case was inappropriate. The common formulation of the discovery rule is that the limitation period for commencing an action will be tolled where a reasonable person, despite the exercise of due diligence, would be unable to know of his injury or its cause. Trice contends that the question of whether a person has exercised due diligence is for the jury, and that “a jury could well decide that [he] was not unreasonable in discovering the fact that counsel’s negligence and breach had ‘harmed’ him only when an appellate court informed him of same.” Brief at 17.
I must reject the conception of harm on which these arguments are implicitly premised. In the ordinary course of affairs, it would seem that being subjected to a term of imprisonment is a harm or an injury to the person. Nor can there be any doubt that the fact of this harm is readily ascertainable upon its occurrence. The appellants’ position is that this injury should not be recognized as a “legal” injury until it has been declared wrongful in a judicial proceeding, either on direct appeal or collateral review of the conviction itself. This approach would make such claims unique among the varieties of negligence; in no other setting does the law depend on a separate determination of wrongfulness to qualify a harm as actionable. On the contrary, it is the very function of the lawsuit to determine whether the injury was wrongfully caused. I perceive no justification for such a distinction.
As discussed infra at page 266-68, 621 A.2d at 123, I believe the confusion arises out of the fact that unlike other injuries, the remedies for legal malpractice, though separate and distinct, are all within the realm of the legal system. A claim, *262 whether on direct appeal or in collateral proceedings, that a conviction should be set aside because the process by which it was obtained was flawed by counsel’s deficient performance asserts fundamentally the same grounds for relief as a complaint seeking money damages for harm caused by an attorney’s negligence. To be sime, the form of relief differs according to the different capacities of the legal proceedings. In each case, however, the basic claim is the same. Acknowledging arguendo that the verdict is proper in the context of the proceedings as they were conducted, each argues that the proceedings and the result would have been different had the attorney rendered appropriate representation. The harm in each case is the same — the defendant’s judgment of sentence. The cause in each case is the same — the attorney’s misfeasance. The fact of the harm does not become more certain with a judicial determination of ineffective assistance. Rather, the cause is established, at least for purposes of that proceeding. Likewise, the fact of the harm is no more certain upon the favorable outcome of a later trial, only the amount or degree of the harm is.
In the present context, we may say that a valid judgment of sentence is strong evidence that the “cause” of a person’s incarceration is his criminal conduct. That judgment, however, is not insulated from all challenge. Even after the judgment has been affirmed on direct appeal, it remains open for the person to claim that the “cause” of his incarceration is a fault in the process through which the judgment was reached. Compare, Grohmann v. Kirschmann, 168 Pa. 189, 203 , 32 A. 32 (1895) (in action for false arrest, guilty verdict is strong prima facie evidence of probable cause, but may be rebutted by proof that it was obtained by corrupt or undue means.) With respect to when such actions may be brought, I find no meaningful difference in the effect on the integrity of the judgment between habeas corpus or other post-conviction challenges and a civil action for money damages.
It is perhaps troubling to envision the possibility of conflicting assessments of the evidence if such similar issues are put to different factfinders for resolution. It would indeed not be *263 readily understandable were a court to find ineffective assistance and a civil jury find no negligence. See Reese v. Danforth, 486 Pa. 479 at 497, n. 10 , 406 A.2d 735 at 745, n. 10 (1979) (O’Brien, J., dissenting). Even more perplexing would be the possibility of a civil jury awarding damages on a finding of negligence while a court was finding no ineffective assistance and affirming the judgment of sentence. It is a mistake, however, to construct special categories to avoid these spectres, which the system is already equipped to minimize and which might never materialize. 3
Accordingly, I would hold that the limitation period on a legal malpractice action against a criminal defense attorney begins to run on the date of the entry of the order terminating the proceedings in which the attorney has rendered his services. I would also hold, however, that the running of the limitation period will be tolled where the attorney has continued to represent the defendant in proceedings on direct appeal, inasmuch as by its very nature such representation asserts, both on behalf of and to the client, that the cause of the unfortunate result was a legal error, not the attorney’s ineffective (or negligent) assistance. Based on this rationale, I agree with the majority’s review of the record and determination that the actions were time barred. 4
. Whether or not the Court has the authority to establish immunity, alter the elements of the cause of action, or alter the standard of culpability, the fact that this Court has deliberated nearly five years before reaching this decision would seem to indicate that the legislature is the better forum to weigh the many policy considerations and establish the law in this area.
Conversely, to the extent that the majority has here indulged in the weighing of policy considerations to re-formulate a cause of action according to the perceived needs of a particular class of defendants (i.e., lawyers), one would expect them to be equally receptive to far-ranging policy arguments on the “need to protect” other classes of *257 defendants (e.g. doctors, accountants, etc.) as well. See infra at 266-68, 621 A.2d at 123.
. Such an argument not only misperceives the nature of the claim of legal malpractice against a criminal defense attorney, it also betrays a serious misapprehension of the nature of the criminal justice system that I cannot believe my colleagues in fact hold.
In broad scope, one cannot dispute the assertion that "the purpose of ... trials is to discover the truth,” Opinion at 248, 621 A.2d at 113 *260 (emphasis in original). However, it is axiomatic that in a criminal case, the Commonwealth is put to the burden of establishing every element of the crime beyond a reasonable doubt according to procedural and evidentiary rules. The role of the defense attorney is to assure that the rules are followed and the Commonwealth is put to its proof. If a person has in fact committed an illegal act, but the Commonwealth for one or more reasons is unable to meet its burden, that person is entitled to an acquittal, which is not a judgment that he or she is innocent. In such a case, if the attorney’s representation fails to meet the appropriate standard and the Commonwealth, as a result, obtains a conviction it otherwise could not have obtained, it may truly be said that the proximate cause of the conviction is the attorney’s negligence. To hold otherwise is to hold that a criminal defendant is entitled to judgment of acquittal only if he or she is factually innocent. I utterly reject the manipulations engaged in by the majority under the pretense of protecting public policy. I have the utmost faith in the ability of juries and trial judges to render decisions in these cases as they are called on to do in every other case alleging professional negligence.
. It would seem that traditional principles of collateral estoppel, for instance, would bar an assertion of negligence where a court had ruled on appeal or in a collateral proceeding that the attorney's conduct was not unreasonable or not prejudicial. A determination of ineffective assistance, however, would not be binding in a civil action against the attorney, since the attorney was not a party to the proceeding where that ruling was made. Indeed, it might well be found that evidence of a finding of ineffectiveness would be inadmissible in a civil action, on the grounds that the probative value of such a determination would be outweighed by the likelihood of prejudice, in that a jury might readily "defer” or give undue weight to the previous judicial determination even though it had been made in a proceeding where the attorney was not an adversarial party.
. Because I agree with the majority as to when the limitation period began to run, I disagree with Justice Larsen’s assertion that neither contract action was time barred. In this appeal, Trice has not separately argued the tort and contract aspects of his claim. Superior Court applied the four year period of 42 Pa.C.S. § 5525(3), (4) (oral contract or contract implied in law) to the contract claim because there was no *264 instrument in writing, although Trice claims and Mozenter conceded that a retainer agreement had been signed, which might implicate the six year period of 42 Pa.C.S. § 5527(2), (6). Because in my view the action was not timely commenced regardless of which period applies, I do not explore the differences in practice and pleading that would attend the different theories of recovery. I would, however, note our prior holdings that the limitation period is imposed on the cause of action, not on the form of action, and that the two year limitation period for personal injuries cannot be avoided by the expedient of pleading in contract. See, e.g., Jones v. Boggs & Buhl, 355 Pa. 242 , 49 A.2d 379 (1946); see also, Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401 , 490 A.2d 839 (1985) (nature of damages sought controls which statute of limitation applies).
I would also note that although Charles Bailey averred the existence of an oral agreement, the argument that the four year period of 42 Pa.C.S. § 5525(3) might apply to Charles Bailey's action was not raised in Superior Court and was not specifically raised in this appeal. Moreover, although the Brief for the Appellants acknowledges that Charles Bailey is now deceased, there appears to have been no substitution of parties pursuant to Pa.R.A.P. 502, and thus we do not have before us any party who could advance the contract claim, even if it had not been waived.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634703. Public record. Not legal advice.