arguing that court should not add a new element to tort of malpractice because ordinary principles of tort law typically offer other paths to the conclusion that persons found guilty of crimes may not obtain damages from their defense attorneys, and explaining that "[t]he doctrine of proximate cause, for example, generally makes it difficult or impossible . . . to show that any ensuing consequences can fairly be attributed to an attorney's negligent representation"
How later courts described this case
- arguing that court should not add a new element to tort of malpractice because ordinary principles of tort law typically offer other paths to the conclusion that persons found guilty of crimes may not obtain damages from their defense attorneys, and explaining that "[t]he doctrine of proximate cause, for example, generally makes it difficult or impossible . . . to show that any ensuing consequences can fairly be attributed to an attorney's negligent representation"
- adopting actual innocence rule and finding rule justified by public 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, and stating that "allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict"
- recognizing that “public policy rationale is strongest when the malpractice plaintiff claims that some species of trial-related error resulted, in a conviction ”
- holding that “[o]nly an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Powell v. Associated Counsel for Accused, 106 P.3d 271 (2005)
In sum, we decline to extend the innocence requirement to these facts, for to do so would not serve the public policy pronounced in Wiley, and adopted in Falkner and its progeny here in Washington.
Distinguished
Distinguished by Lynch v. Warwick, 115 Cal. Rptr. 2d 391 (2002)
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.
The opinion
WERDEGAR, J., Concurring.
I agree with the majority that plaintiff’s guilt or innocence of the 1990 battery is relevant to his malpractice claim and that the case must therefore be remanded for further proceedings. Accordingly, I concur in the judgment. I do not, however, agree with the majority’s decision to add a new element to the tort of malpractice, nor do I agree with the method by which the majority reaches that decision.
The majority expresses concern that convicted criminals not be permitted to avoid the consequences of their crimes by recovering damages for legal malpractice. While the concern appears valid, for a court therefore simply to declare, as does the majority, that “[f]or reasons of policy and pragmatism” (maj. opn., ante, at p. 534), the law will now be changed, seems inappropriate. Society respects its high courts’ decisions because it understands that someone must have the last word on difficult questions of law. A judicial decision that explicitly presents itself as a policy decision, rather than as a neutral application of existing legal principles, risks forfeiting that respect. One need not demand that judges be entirely uninfluenced by their personal *546 views on good social policy. But one can, and should, ask that judges be mindful of their duty to strive constantly to subordinate such views to more objective sources of law.
In this case, fortunately, the impact of the majority’s peremptory method is likely to be limited. This is because the ordinary principles of tort law typically offer other paths to the conclusion that persons found guilty of crimes may not obtain damages from their defense attorneys. The doctrine of proximate cause, for example, generally makes it difficult or impossible for a person guilty of intentional criminal wrongdoing to show that any ensuing consequences can fairly be attributed to an attorney’s negligent legal representation. (See, e.g., Weiner v. Mitchell, Silberberg & Knupp (1980) 114 Cal.App.3d 39, 48 [ 170 Cal.Rptr. 533 ], cited in maj. opn., ante, at p. 537.) As the majority itself acknowledges, “[i]n the criminal malpractice context ... a defendant’s own criminal act remains the ultimate source of his predicament . . . .” (Maj. opn., ante, at p. 540.) This being the case, it is unnecessary and, thus, all the more regrettable that the majority has chosen to announce its decision as one of “policy and pragmatism” rather than of law.
One problem with announcing a new, policy-based rule is that unintended consequences invariably follow. So it is here. Our court has in recent cases made it abundantly clear that we will strictly follow the statute that governs the accrual and limitation of claims for attorney malpractice. (Code Civ. Proc., § 340.6; see Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739 [ 76 Cal.Rptr.2d 749 , 958 P.2d 1062 ] (Jordache); Adams v. Paul (1995) 11 Cal.4th 583 [ 46 Cal.Rptr.2d 594 , 904 P.2d 1205 ] (Adams).) Under this statute, an action against an attorney for a wrongful act or omission must ordinarily be commenced within one year after the plaintiff discovers, or should have discovered, the facts constituting the wrongful act or omission. In view of the time required to decide appeals and petitions for habeas corpus in criminal cases, the statute of limitations in most cases likely will run long before the convicted person has a chance to have the conviction set aside and, thus, remove the bar (collateral estoppel) to establishing his or her actual innocence. The majority alludes to this problem, but offers no solution. (Maj. opn., ante, at p. 536, fn. 2.) Indeed, I see no ready solution, considering that we have soundly condemned all nonstatutory tolling rules (see Jordache, supra, 18 Cal.4th at pp. 755-758), including our own prior effort to redefine the element of “damages” so as to prevent the accrual of a cause of action for malpractice until all related lawsuits that might undo the harm caused by the malpractice have concluded (see ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 [ 36 Cal.Rptr.2d 552 , 885 P.2d 965 ], limited in Adams, supra, 11 Cal.4th at p. 588 , and *547 overruled in Jordache, supra, 18 Cal.4th at p. 763). How, without undoing Jordache and Adams, might we hold that a cause of action for criminal malpractice does not accrue until the underlying conviction is set aside?
Another problem with rules of law that spring to life full-grown from the mind of policy, rather than by evolving through the ordinary process of the common law, is that they tend not to be well articulated. That is the case here. What, precisely, is “actual innocence”? The majority does not tell us. If a criminal defendant, for example, is convicted of two different crimes, must he or she prove innocence of both, even if the alleged legal malpractice affected only one of the convictions? Must a convicted malpractice plaintiff prove innocence of all related offenses that might have been charged, or only of those that were charged or necessarily included in those that were? Should the plaintiff’s ability to recover for malpractice depend on the fortuities of prosecutorial charging discretion? The answer to these questions is far from obvious. ■
The common law of torts, as articulated by successive generations of judges, typically has enough depth and subtlety to do justice in unusual cases. To turn our backs on this collective wisdom by adopting a rule apparently designed to cut off whole categories of litigation seems ill-advised. It is not beyond imagination that a particular defendant’s offense might be so insignificant, and the attorney’s malpractice so egregious, that reasonable jurors instructed on the relevant principles of tort law might well conclude the latter was in fact a proximate cause of some of the ensuing consequences. The majority’s new rule seems to foreclose such possibilities.
In conclusion, although I share the majority’s intuition that a guilty person ordinarily should not be able to recover damages based on a defense attorney’s malpractice, I do not agree that it is either necessary or desirable to remake the law to conform to our own views of good policy. Rather, we would do better to ask whether any legitimate policy concerns already find expression in existing principles of tort law and, if so, to leave the law alone.