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
MOSK, J., Dissenting.
As the majority acknowledge, the usual elements of a legal malpractice cause of action are: “(1) the duty of the attorney to use such skill, prudence and diligence as members of the profession commonly possess; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage.” (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1621 [ 33 Cal.Rptr.2d 276 ].) The majority add the element of “actual innocence” in criminal malpractice cases. In effect, the majority hold that a defense attorney owes no duty cognizable in tort to act competently toward a client he or she knows to be *548 guilty of a crime of which the client is charged. I decline to join the majority for reasons stated in the Court of Appeal opinion, set forth below. 1
“First, as recognized by the court in [Glenn v. Aiken (1991) 409 Mass. 699 [ 569 N.E.2d 783, 787 , 4 A.L.R.5th 1060 ], fn. omitted], it is ‘difficult to defend logically a rule that requires proof of innocence as a condition of recovery, especially if a clear act of negligence of defense counsel was obviously the cause of the defendant’s conviction of a crime.’ [Citation.] For example, where the attorney fails to seek to suppress evidence seized in clear violation of his client’s constitutional rights, a bright line rule would preclude the guilty client from recovering damages for the malpractice. Similarly, the rule would preclude recovery where the client was incarcerated after his attorney failed to communicate the prosecutor’s offer to dismiss charges against him in exchange for testimony against another of that attorney’s clients. (Cf. Krahn v. Kinney [(1989) 43 Ohio St.3d 103 ], 538 N.E.2d 1058 .) In such instances, requiring proof of innocence would have the effect of ‘just about destroy[ing] criminal malpractice as an actionable tort in the very type of situation where the lawyer’s incompetence is most flagrant and its consequences most easily demonstrable.’ (Kaus & Mallen, The Misguiding Hand of Counsel—Reflections on “Criminal Malpractice” [(1974)] 21 UCLA L.Rev. 1191, 1205.)
“Second, the rule is clearly intended to create a separate standard for clients represented in a criminal setting. However, it is precisely in this setting that the state and federal Constitutions guarantee effective assistance of counsel. (Cal. Const., art. I, § 15; U.S. Const., 6th Amend.; People v. Ledesma [(1987) 43 Cal.3d 171 ,] 215 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ]; Strickland v. Washington [(1984)] 466 U.S. [668,] 684-685 [104 S.Ct. at pp. 2062-2063].) A rule relieving criminal defense counsel from liability for harm resulting from his clear negligence is fundamentally incompatible with this constitutionally guaranteed right.
“While the court in Glenn believed that the possibility the client is innocent will act as a sufficient deterrent to negligent conduct by defense counsel in criminal cases, we are not aware of any evidence to support this proposition. Even if such a deterrent effect could be established, it is difficult to accept that the client who has suffered loss of personal liberty as a result of his counsel’s negligence must make a more onerous showing to recover for those losses than his civil counterpart, whose losses are purely monetary.
*549 “Third, while [] the public has an interest in encouraging representation of criminal defendants, [] this [is not] a valid policy reason to support the imposition of an ‘actual innocence’ requirement in the absence of any empirical evidence suggesting that the threat of malpractice claims, as defined by the traditional elements, has deterred public defenders or retained counsel from representing criminal defendants.
“Finally, the rule creates rather artificial distinctions between public defenders and retained criminal defense attorneys, on one hand, and civil attorneys on the other. []
“For these reasons, we [should not] alter the traditional elements of a malpractice cause of action for claims arising out of criminal proceedings.”
To the analysis provided in the Court of Appeal opinion, I would add two additional reflections. First, since Weiner v. Mitchell, Silberburg & Knupp (1980) 114 Cal.App.3d 39 [ 170 Cal.Rptr. 533 ], it has been the rule in the state that a criminal defendant must obtain postconviction relief before pursuing a malpractice action. It is also noteworthy that proving ineffective assistance of counsel in order to obtain such relief, and for purposes of proving criminal malpractice liability, is very difficult. When considering a trial counsel’s performance in an ineffective assistance claim, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 689 [ 104 S.Ct. 2052, 2065 , 80 L.Ed.2d 674 ].) This stringent rule will screen out frivolous malpractice claims. There is no need for the actual innocence requirement to further limit these claims.
Second, this case does not present the question whether public defenders should be immune from malpractice suits under Government Code section 820.2, which grants immunity to public officials for discretionary acts. Thus, I do not address the appropriate outcome of this case were that question presented.
For all of the foregoing, I would affirm the judgment of the Court of Appeal.
Brackets together in this manner [], without enclosed material, are used to denote deletions from the opinion of the Court of Appeal; brackets enclosing material are used to denote additions. The Court of Appeal’s footnotes are omitted.