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Shaw v. Dept. of Administration, Public Defender Agency (8/30/91), 816 P 2d 1358
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE SUPREME COURT FOR THE STATE OF ALASKA
JOHN J. SHAW, )
) Supreme Court No. S-3720
) Superior Court No.
v. ) 4FA-88-62 Civil
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF ADMINISTRATION, PUBLIC )
DEFENDER AGENCY, and DAVID C. )
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District at
Fairbanks, Richard D. Savell, Judge.
Appearances: Joseph L. Paskvan, Hoppner &
Paskvan, P.C., Fairbanks, for Appellant.
Randy M. Olsen, Assistant Attorney General,
Fairbanks, and Douglas B. Baily, Attorney
General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton, and Moore, Justices.
RABINOWITZ, Chief Justice.
John Shaw brought suit against David Backstrom and the
Public Defender Agency alleging legal malpractice. The superior
court granted summary judgment, concluding that the action was
barred by the statute of limitations. We reverse and hold that a
convicted criminal defendant must obtain post-conviction relief
as a precondition to maintaining a legal malpractice claim
against his or her attorney.
Facts and Proceedings
On March 8, 1973, John Shaw and Toney Powell, both
represented by assistant public defender David Backstrom, were
convicted of two counts of burglary not in a dwelling and two
counts of larceny in a building. Powell had stolen seventeen
pairs of pants from a men's store where he and Shaw worked as
janitors, and Shaw had allegedly assisted him. Shaw has
steadfastly maintained his innocence.
While representing both Shaw and Powell on the burglary
and theft charges, Backstrom advised the superior court that a
"conflict situation"was arising. However, separate attorneys
for the defendants were never provided. The conflict continued
through the trial. Powell was willing to testify that Shaw had
nothing to do with the theft but defense counsel did not permit
him to do so. Further, Backstrom did not advise Shaw that he
could take the stand in his own defense, because he wanted to
protect Powell. Additionally, several witnesses at trial were not
allowed to testify as to statements by Shaw because of the threat
to Powell.1 As noted above, Powell and Shaw were convicted.
Sentencing was set for April 10, 1973. Backstrom indicated to
Shaw that he would file an appeal, but he did not. Nor did
Backstrom contact Shaw, although he had indicated that he would.
Shaw never appeared for sentencing because "he was not
going to jail for something he didn't do." He left the
jurisdiction and from mid-March of 1973 until September of 1978,
Shaw lived in St. Louis, Missouri. The superior court issued a
bench warrant for his arrest. Shaw later returned to Alaska and
on December 26, 1979, he was stopped in Fairbanks for operating a
motor vehicle with a defective tail light. This stop resulted in
a routine check, revealing the outstanding warrant for his
arrest. Shaw was subsequently charged with failure to appear.
Thereafter, the superior court scheduled a sentencing
hearing for Shaw's 1973 convictions. Shaw was originally
represented by the Public Defender Agency ("PDA"), but, due to
conflict, the superior court released the PDA as his counsel and
appointed Daniel Saluri to represent Shaw. After a hearing, the
court suspended imposition of a sentence for the 1973 convictions
and placed Shaw on probation for two years.
Saluri also represented Shaw in his April 1980 jury
trial for failure to appear. After his conviction for failure to
appeal, the superior court sentenced Shaw to a term of three
years with two suspended. An appeal followed. While the appeal
was pending, Shaw moved to Barrow, where he was employed by the
North Slope Borough until his arrest in 1981 for receiving a
stolen handgun and being a felon in possession of a handgun.
Again represented by Saluri, Shaw pled nolo contendere to the
possession charge, and the larceny charge was dropped.
After Shaw's arrest on the felon in possession charge,
his probation officer petitioned to revoke Shaw's probation on
the 1973 burglary and larceny convictions. Originally, Saluri
represented Shaw on this matter, but later the law firm of Birch,
Horton, Bittner, Pestinger and Anderson was appointed to
represent Shaw. In early 1984, an attorney with that firm
notified Shaw that he intended to argue that Shaw was denied
effective assistance of counsel in connection with the 1973
burglary and theft convictions, based on Backstrom's original
representation of Shaw.
Later, in 1986, the Office of Public Advocacy was
appointed to represent Shaw in a sentence appeal for the felon in
possession charge. In its representation of Shaw, the Office of
Public Advocacy filed a motion to set aside the 1973 convictions.
On August 15, 1986, the superior court set aside Shaw's 1973
convictions because they were constitutionally defective.
Shaw has served time in jail from December 26, 1979
until March 7, 1980 for the 1973 convictions; from the end of
December 1981 until September 1982 on the failure to appear
charge, and from October 1985 until September 1986 for the felon
in possession charge.
Shaw filed a complaint on January 13, 1988, alleging
that David Backstrom and the PDA negligently allowed a conflict
of interest to lead to his 1973 convictions. Backstrom and the
PDA pled the statute of limitations as an affirmative defense.
All parties then filed motions for summary judgment as to the
statute of limitations issue.
The superior court granted the state's motion for
summary judgment. The court held that a plaintiff in a legal
malpractice suit involving a criminal matter need not set aside
his or her conviction before filing the civil claim. Rather, the
plaintiff must only show that "but for the negligence of his
attorney, he would have received a more favorable result."
Finding that sometime between 1983 and 1984 Shaw learned that he
might have had ineffective assistance of counsel in connection
with the 1973 proceedings, and applying the two year statute of
limitations of AS 09.10.070, the court held that his suit was
barred by the statute of limitations.2
We hold that a convicted criminal defendant must obtain
post-conviction relief before pursuing an action for legal
malpractice against his or her attorney.3 Given that obtaining
such relief will remain uncertain until actually granted, the
statute of limitations for filing legal malpractice claims must
be tolled until such relief is granted.
Our review of the case law reveals that other juris
dictions are divided on the issue of requiring post-conviction
relief for maintaining a legal malpractice action in a criminal
case. However, we agree with those courts which have held that
public policy requires some form of post-conviction relief as a
prerequisite to the filing of a legal malpractice claim. As the
New York Court of Appeals has explained,
This is so because criminal prosecutions
involve constitutional and procedural safe
guards designed to maintain the integrity of
the judicial system and to protect criminal
defendants from overreaching governmental
actions. These aspects of criminal proceed
ings make criminal malpractice cases unique,
and policy considerations require different
pleading and substantive rules.
Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987) (citations
The requirement of post-conviction relief promotes
judicial economy because many issues litigated in the quest for
post-conviction relief will be duplicated later in the legal
malpractice action. This is because dispositive post-conviction
relief is relevant to the issue of proximate causation. Claudio
v. Heller, 463 N.Y.S.2d 155 (Sup. Ct. 1983).4 As Shaw argues, it
is also relevant to the issue of damages. See Johnson v.
Schmidt, 719 S.W.2d 825, 826 (Mo. App. 1986). If the defendant
was denied post-conviction relief, the legal principle of
collateral estoppel would serve to eliminate any frivolous
malpractice claim. See Schlumm v. Terrence J. O'Hagan, P.C., 433
N.W.2d 839, 846-47 (Mich. App. 1988) (collateral estoppel barred
malpractice claim which rested upon the same issues previously
decided in plaintiff's ineffective assistance of counsel case);
Weiner v. Mitchell, Silberberg & Knupp, 170 Cal. Rptr. 533, 538
(Cal. App. 1980) (valid federal conviction cannot be relitigated
in malpractice action and must be accepted as the proximate cause
of plaintiff's conviction); Johnson v. Schmidt, 719 S.W.2d at
826; see 2 R. Mallen & J. Smith, Legal Malpractice 21.3, at 289
(3d ed. 1989); see also D. Potel, Criminal Malpractice:
Threshold Barriers to Recovery Against Negligent Criminal
Counsel, 1981 Duke L.J. 542, 551-56 (1981). Thus, by
prioritizing post-conviction relief judicial resources will be
conserved. Moreover, requiring post-conviction relief as a
prerequisite to a legal malpractice action aids in determining
whether the statute of limitations bars the action. By adopting
the date that post-conviction relief is obtained as the trigger
to the statute of limitations, we establish a bright line test
which should significantly assist courts in the resolution of
statute of limitations issues.
Systemic concerns also support such an approach.
Mallen and Smith note "the litigious nature of incarcerated
persons who occupy the time of their incarceration by pursuing
civil actions against their former attorneys."2 R. Mallen & J.
Smith, supra, at 290. Also of concern is the attorney who, in
the course of defending against a malpractice action, might
produce privileged or other evidence in his or her defense that
might hurt a criminal defendant with a legitimate basis for post-
conviction relief. Finally, we note the desirability of allowing
a criminal defendant with a valid post-conviction relief claim to
pursue that remedy without the distraction of also filing a legal
The superior court's decision and the state's arguments
on appeal caution against this approach. The superior court
declined to impose a higher requirement on the criminal defendant
than on the civil defendant in a malpractice action.5 However,
"there is minimal unfairness in such a requirement since the
ability to have a judgment set aside because of the incompetence
of counsel is a remedy uniquely available to criminally convicted
persons. The civil litigant has no such remedy." R. Mallen & J.
Smith, supra, at 291.6 Moreover, the two types of malpractice
actions involve different policy considerations.
The state warns that this approach eliminates the
concept of a statute of limitations: Criminal Rule 35(a) allows
an application to correct an illegal sentence "at any time."
However, the discovery rule, which applies to civil actions, may
also trigger legal malpractice actions at an unknown time in the
future. See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988).7
Finally, the state also asserts that the requirement which we
adopt today will discourage attorneys from seeking
post-conviction relief for their own clients. Shaw argues, in
contrast, that the negligent attorney will want to mitigate
damages by attempting to obtain post-conviction relief for the
client. We find merit in Shaw's argument and note that, as here,
the negligent trial attorney would not necessarily be the same
attorney seeking post-conviction relief on the basis of
ineffective assistance of counsel.
In determining that a successful motion for
post-conviction relief is a prerequisite to maintaining an action
for legal malpractice in a criminal case, we have relied in part
on the law of malicious prosecution. In a malicious prosecution
tort action, establishing the tort requires the plaintiff prove
an unsuccessful prosecution occurred. See Hazen v. Municipality
of Anchorage, 718 P.2d 456, 461 (Alaska 1986). This element is
not established, and indeed, remains uncertain, until the
cessation of the underlying action. The same is necessarily true
of post-conviction relief. The merits of the application for
post-conviction relief cannot be established until the court has
ruled on the matter. Therefore, we conclude that the statute of
limitations on legal malpractice actions arising out of criminal
proceedings does not begin to run until after the post-conviction
relief has been obtained.8
REVERSED and REMANDED to the superior court for further
proceedings consistent with this opinion.
1. On December 23, 1985, the Public Defender Agency raised
the following argument in trying to get Shaw's original
Because the State of Alaska provided one
attorney for two defendants, the attorney did
not want to use Powell to exculpate Shaw,
because then Powell would be prejudiced.
This is a classic case of conflict of
interest between clients.
2. The superior court rejected Shaw's argument that a
plaintiff has to be informed that a civil claim existed; rather,
it held that he merely had to be put on notice to begin an
inquiry to protect his civil rights. Nor did it find that the
continuous representation rule made Shaw's claim timely. Even
when tolling the statute of limitations during the time Shaw was
represented by the PDA, the court found that the PDA was released
as counsel in 1980. The court determined that the PDA's sporadic
representation of Shaw from 1981 to 1986 on matters "unrelated"
to the 1973 convictions was not enough to keep the continuous
representation rule in play. The court also rejected equitable
tolling as Shaw did not have duplicative remedies nor was his
initial action to overturn his earlier conviction defective. It
further rejected the argument that imprisonment tolled the
statute of limitations because Shaw's cause of action did not
accrue while he was in prison, as the statute required. Because
we hold that obtaining post-conviction relief is an element of
legal malpractice in criminal cases, we do not reach these other
issues. Nor do we reach Shaw's allegation that the six year
statute of limitations in AS 09.10.050 applies after our decision
in Jones v. Wadsworth, 791 P.2d 1013 (Alaska 1990).
3. Post-conviction relief most typically involves relief
under Criminal Rule 35 or Criminal Rule 35.1. However, nothing
in this opinion is meant to imply that only Criminal Rule 35 or
Criminal Rule 35.1 relief permits the bringing of a legal
malpractice action; any post-conviction relief suffices.
4. The burden of proof in the two proceedings is similar.
In obtaining post-conviction relief for ineffective assistance of
counsel, defendant must show "that his lawyer's skill . . . fell
below that of a lawyer with ordinary skill and training in the
criminal law, and . . . that this defective performance
contributed in some way to his conviction." Larson v. State, 614
P.2d 776, 780 (Alaska 1980). In a post-conviction relief
proceeding the petitioner must prove by a preponderance of the
evidence all facts necessary to overturn the prior judgment of
conviction. Merrill v. State, 457 P.2d 231, 234 (Alaska 1969),
rev'd on other grounds, Donnelly v. State, 516 P.2d 396 (Alaska
5. We previously have listed the elements of legal
Like those of any other action for
negligence, the elements of a cause of action
in tort for professional negligence are: (1)
the duty of the professional to use such
skill, prudence, and diligence as other
members of the profession commonly possess
and exercise; (2) a breach of that duty; (3)
a proximate causal connection between the
negligent conduct and the resulting injury;
and (4) actual loss or damage resulting from
the professional's negligence.
Linck v. Barokas & Martin, 667 P.2d 171, 173 n.4 (Alaska 1983)
(citations omitted). These same elements apply in a criminal
case, with the additional requirement that the plaintiff must
first obtain post-conviction relief. At least one court has
recognized that merely obtaining post-conviction relief will not
automatically establish legal malpractice, even in a case of
ineffective assistance of counsel, if the remaining elements are
not established. Mylar v. Wilkinson, 435 So.2d 1237, 1239 (Ala.
6. We thus note our disagreement with Krahn v. Kinney, 538
N.E.2d 1058, 1061 (Ohio 1989), which held that all legal
malpractice actions require the same elements of proof, whether
arising from criminal or from civil representation. The Krahn
court noted the inequity that would result from a contrary
holding, yet, from the facts reported in the opinion, it is clear
that the plaintiff in Krahn should have been able to obtain post-
conviction relief. Moreover, most of the cases cited by Krahn
support our holding or are inapposite to it. For example, in
McCord v. Baily, 636 F.2d 606, 609-10 (D.C. Cir. 1980), cert.
denied, 451 U.S. 983 (1981), the court held that a denial of post-
conviction relief collaterally estopped a plaintiff from pursuing
a legal malpractice action. The court stated that "the legal
standards for ineffective assistance of counsel . . . and for
legal malpractice in this action are equivalent." Id. at 609.
While McCord did not hold that post-conviction relief is an
element of malpractice in a criminal case, we believe the court's
reasoning and holding support such a result.
See also Mylar v. Wilkinson, 435 So.2d at 1239 (fact that
convicted criminal defendant had obtained post-conviction relief
not sufficient to maintain an action in legal malpractice absent
showing that he would have obtained a more favorable result apart
from attorney's negligence); Snyder v. Baumecker, 708 F. Supp.
1451, 1464 (D.N.J. 1989) (applying New Jersey law) (the estate of
a deceased prisoner, who had never been convicted, could recover
damages for emotional distress based on a legal malpractice
action against the decedent's attorney if estate proves that "but
for" defendant's alleged legal malpractice, decedent would have
obtained his release from prison); Bowman v. Doherty, 686 P.2d
112 (Kan. 1984) (plaintiff may maintain an action in tort for
loss of liberty based on legal malpractice; no requirement of
post-conviction relief, but plaintiff's theory was not wrongful
conviction). Each of these cases is inapposite to the instant
7. The state also contends that existing case law supports
its position. Wettanen v. Cowper, 749 P.2d 362 (Alaska 1988),
held that it is not necessary that the client suffer all of the
damages caused by the attorney's malpractice before the statute
begins to run, nor that the client know the full extent of
damages. Rather, the statute begins to run on the date when one
is actually harmed as a result of the malpractice. Id. at 365.
The underlying legal action in Wettanen, however, involved a
civil action for assault; it involved none of the policy
considerations present with a criminal defendant.
8. We reject the view that the statute of limitations
begins running without a dispositive motion for post-conviction
relief. See, e.g., Winkler v. Messinger, Alperin & Hufjay, 538
N.Y.S.2d 299, 300 (App. Div. 1989); Jepson v. Stubbs, 555 S.W.2d
307, 314 (Mo. 1977) (en banc) (statute of limitations began to
run when defendant was released from prison and cause of action
in legal malpractice was capable of ascertainment). We recently
reiterated our view that "the defense of statute of limitations .
. . is generally disfavored by courts." Lee Houston & Assoc.
Ltd. v. Racine, 806 P.2d 848, 854 (Alaska 1991) (citation
omitted). A criminal defendant's interest in obtaining post-
conviction relief is sufficient to counteract any policy concern
over possible dilatory conduct.