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Shaw v. State of Alaska Public Defender Agency (10/8/93), 861 P 2d 566
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.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN J. SHAW, )
) Supreme Court No. S-4933
v. ) Superior Court No.
) 4FA-88-62 CIVIL
STATE OF ALASKA, DEPARTMENT )
OF ADMINISTRATION, PUBLIC )
DEFENDER AGENCY, and DAVID C. ) O P I N I O N
STATE OF ALASKA, DEPARTMENT ) Supreme Court No. S-5010
OF ADMINISTRATION, PUBLIC )
DEFENDER AGENCY, and DAVID C. ) Superior Court No.
BACKSTROM, ) 4FA-88-62 CIVIL
JOHN J. SHAW, )
___________________________________) [No. 4008, October 8,
Petitions for Review from the Superior
Court of the State of Alaska, Fourth Judicial
District, Fairbanks, Richard D. Savell,
Appearances: Joseph L. Paskvan, Hoppner
& Paskvan, Fairbanks, for Petitioner-
Respondent John J. Shaw. Randy M. Olsen,
Assistant Attorney General, Fairbanks,
Charles E. Cole, Attorney General, Juneau,
for Respondents-Petitioners State of Alaska,
Department of Administration, Public Defender
Agency, and David C. Backstrom.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
COMPTON, Justice, dissenting in part.
These petitions raise several questions arising out of
a legal malpractice action brought by a criminal defendant
against his attorney. First, we address at what time prejudgment
interest in a legal malpractice action brought against a criminal
defense attorney begins to accrue. Second, we address the
question whether innocence or actual guilt of the plaintiff in
the legal malpractice action is relevant. If so, we must further
decide who bears the burden of proof on the issue. We address
these issues in turn.
I. FACTUAL AND PROCEDURAL BACKGROUND
The long and complex factual and procedural background
in this case is set out in Shaw v. State, 816 P.2d 1358 (Alaska
1991) (Shaw I). We limit this opinion to summarizing the dates
and events relevant to the questions raised by these petitions:
(1) Shaw was convicted of two counts of burglary and two counts
of larceny in 1973; (2) upon apprehension after fleeing the
state, Shaw was sentenced for the 1973 convictions in 1980; (3)
on August 15, 1986, Shaw's convictions were set aside as
"constitutionally defective;" and (4) Shaw filed a legal
malpractice claim against his attorney and the Public Defender's
office on January 13, 1988. Id. at 1359-60. Finally, in Shaw I
we held that the statute of limitations as to legal malpractice
arising out of criminal proceedings does not begin to run until
after the criminal defendant obtains post-conviction relief. Id.
Subsequently both parties moved to establish the law of
the case on different issues: Shaw moved for a statement of law
regarding when prejudgment interest accrues, and the State moved
to establish the law of the case concerning, among other things,
the elements to be proven at trial and the accompanying burdens
In response to Shaw's motion, the superior court found
that the legal malpractice cause of action accrued upon Shaw's
obtaining post-conviction relief. Therefore, under AS 09.30.070,
prejudgment interest commences upon service of the complaint. In
response to the State's motion, the superior court held that, as
the State acknowledged both duty and breach of duty, Shaw's only
burden at trial was to prove the proximate causal connection
between his counsel's negligent defense at trial and his claimed
damages. The superior court further ruled that at trial the
State had the burden of proving, by a preponderance of the
evidence, the affirmative defense that Shaw was actually guilty
of the original charges.
Shaw petitioned for review of the court's ruling
concerning the time at which prejudgment interest accrues and the
State petitioned for review of the ruling establishing the law of
the case as to the parties' respective burdens at trial. We
A. At What Time Does Prejudgment Interest in a Legal
Malpractice Action Brought Against a Criminal Defense
Attorney Begin to Accrue?
In order to determine when prejudgment interest begins
to accrue, we must determine when Shaw's cause of action arose.
State v. Phillips, 470 P.2d 266, 274 (Alaska 1970) ("All damages
. . . should carry interest from the time the cause of action
accrues . . . ."). We have consistently held in the context of
civil judgments that "a cause of action accrues when all the
essential elements forming the basis for the claim have
occurred." Lamoreux v. Langlotz, 757 P.2d 584, 585 (Alaska 1988)
(citations omitted). Thus, the question is when did all the
essential elements forming the basis of Shaw's claim accrue.
In Shaw I, we held that "obtaining post-conviction
relief is an element of legal malpractice in criminal cases."
816 P.2d at 1360 n.2. It is clear, then, that all the essential
elements of Shaw's legal malpractice claim did not accrue until
he obtained post-conviction relief on August 15, 1986.2 In
regard to prejudgment interest, the legislature has provided that
all causes of action that accrue after June 11, 1986 are subject
to AS 09.30.070. Ch. 139, 9, SLA 1986. The statute provides,
(b) Except when the court finds that
the parties have agreed otherwise,
prejudgment interest accrues from the day
process is served on the defendant or the day
the defendant received written notification
that an injury has occurred and that a claim
may be brought against the defendant for that
injury, whichever is earlier.
AS 09.30.070(b). As no written notice was provided to the
defendant, prejudgment interest began to accrue on January 15,
1988, when the complaint was served.
B. Is the Innocence of a Former Criminal Defendant Who Sues His
Defense Attorney for Malpractice Relevant?
We have not previously addressed the relevance of a
criminal defendant's innocence to that defendant's subsequent
malpractice claim against his former defense attorney. A survey
of case law from other states indicates that this area of
criminal malpractice constitutes a small but growing percentage
of legal malpractice cases. 2 Ronald E. Mallen & Jeffrey M.
Smith, Legal Malpractice 21.1, at 284 n.4 (3d ed. 1989). In
cases that have addressed the issue of a criminal defendant's
guilt, the vast majority of courts have held that innocence or
the actual guilt3 of the criminal defendant is relevant.4 Before
deciding whether to join the majority of courts on this issue, we
first address the question of whether the civil arena even allows
such an inquiry to be made. We think that it does. In so
holding, we base our decision on the different purposes and goals
of the criminal and civil justice systems.
It is indisputable that a primary goal, perhaps the
paramount goal, of the criminal justice system is to protect the
innocent accused against an erroneous conviction. Our society
has made "a fundamental value determination . . . that it is far
worse to convict an innocent man than to let a guilty man go
free." In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J.,
concurring); see also State v. Alto, 589 P.2d 402, 406 (Alaska
1979) ("[P]lacing the burden of proof on the state beyond a
reasonable doubt in criminal cases reflects our belief that it is
worse tha[t] an innocent man be jailed than that a guilty man go
free."). This value determination is evidenced by the array of
protections provided an accused by the United States Constitution
and the Alaska Constitution. When the state brings its power as
a prosecuting authority to bear on an individual, the
Constitutions protect the accused by imposing carefully crafted
limitations5 on the state's ability to prosecute.6
Few would dispute that reliable factfinding is also a
significant goal of both the criminal and the civil systems. In
both arenas, courts seek the truth concerning the events in
dispute. In the criminal system, however, the goal of reliable
factfinding and the goal of protecting the innocent accused may
When these two goals conflict, it is the goal of
reliable factfinding that must give way to the paramount goal of
protecting the innocent accused. As Lafave and Israel noted:
Reliable factfinding, as a goal in
itself, would seek to ensure equally the
accuracy of both guilty verdicts and
nonguilty verdicts. Protection of the
innocent, however, places greater priority on
the accuracy of the guilty verdict. It
reflects a desire to minimize the chance of
convicting an innocent person even at the
price of increasing the chance that a guilty
person may escape conviction.
1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
1.6(c), at 45 (1984).8
Thus, the criminal system resolves the conflict between
protecting the innocent accused and reliable factfinding by
choosing to err on the side of ensuring the accuracy of guilty
verdicts. In order to ensure accuracy, the criminal trial is
limited by the protections the Constitutions provide to
determining the defendant's guilt beyond a reasonable doubt.
Consequently, at times the determination of the truth in a
particular case is subsumed in order to fulfill the goal of
protecting the innocent.
In the civil system, however, the same conflict does
not arise because the goal of protecting an innocent accused is
no longer paramount. The protective barriers provided an accused
by our state and federal case law and Constitutions are no longer
applicable, and thus we are not confined to a determination of
the plaintiff's guilt beyond a reasonable doubt. However, as
noted above, the determination that the civil arena allows
inquiry into innocence or the actual guilt of the plaintiff does
not end our inquiry. Simply because we are not prevented in the
civil system from determining innocence or the actual guilt of
the plaintiff does not resolve the question of whether innocence
or the actual guilt of the plaintiff is relevant in a malpractice
suit against his former defense attorney. We conclude that it
If a plaintiff in a criminal malpractice action against
his former defense attorney has engaged in the criminal conduct
he was accused of in the criminal trial, public policy prevents
recovery on his part. We have previously held that civil
recovery should not be a tool for shifting an individual's
responsibility for the individual's criminal acts. This
principle is applicable to the case at hand.
In Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240
(Alaska 1983), we held that a plaintiff who had been convicted of
manslaughter for killing a victim with a shotgun could not bring
a tort action against the manufacturer and seller of the gun for
personal losses suffered as a result of imprisonment allegedly
resulting from a defect in the gun. We stated that "allowing a
criminal defendant, who has been convicted of an intentional
killing, to impose liability on others of the consequences of his
own anti-social conduct runs counter to basic values underlying
our criminal justice system." Id. We relied on Adkinson in Lord
v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991), to hold that a
drunken customer who was served alcohol by a bar in violation of
the dram shop statute and who subsequently committed a felony
could not recover from the bar for damages he suffered as a
result of his imprisonment. Id. at 663.
Adkinson and Lord differ from the present case in that
both plaintiffs claimed that the defendants were in some way
responsible for the criminal acts committed by the plaintiffs,
whereas in a malpractice suit the plaintiff is not claiming that
the attorney contributed to the plaintiff's criminal act. The
cases are the same, however, in that the claimed injury or
consequence is the same: The plaintiff claims that were it not
for the negligent action of another, he would not have been
subjected to imprisonment. As we did in Adkinson and Lord, we
hold that if plaintiffs engaged in the criminal conduct they are
accused of, then they alone should bear full responsibility for
the consequences of their acts, including imprisonment. Any
subsequent negligent conduct by a plaintiff's attorney is
superseded by the greater culpability of the plaintiff's criminal
conduct. Cf. Wilson v. City of Kotzebue, 627 P.2d 623, 631
(Alaska 1981) (holding that a plaintiff's intentional conduct
that results in injury to himself will bar any recovery against a
merely negligent defendant whose conduct also contributed to the
In cases holding that innocence or the actual guilt of
the plaintiff is relevant, the majority of courts place the
burden on the plaintiff to prove his actual innocence. Although
we conclude that innocence or the actual guilt of the plaintiff
is relevant, we decline to place the burden of proving actual
innocence on the plaintiff. We have already burdened a criminal
defendant bringing a malpractice action against his defense
attorney by requiring the additional element of first obtaining
post-conviction relief. Rather than require the plaintiff to
prove his actual innocence in order to succeed, we hold that the
defendant may raise the issue of the plaintiff's actual guilt as
an affirmative defense.9 The attorney, or in this case the
State, as the party raising the affirmative defense, will thus
have the burden of proof by a preponderance of the evidence as to
the actual guilt of the plaintiff.10 Morrow v. New Moon Homes,
Inc., 548 P.2d 279, 294 (Alaska 1976) ("The party raising the
affirmative defense generally bears the burden of proof as to
Shaw has established the first two elements of the four
elements required for a legal malpractice claim as well as the
additional element of post-conviction relief necessary for a
legal malpractice claim arising out of a prior criminal matter.
The two remaining elements are causation and damages.11 In order
to prove causation, Shaw must establish by a preponderance of the
evidence that "but for" the attorney's negligent
misrepresentation, the criminal jury would have returned a more
favorable verdict. Thus, Shaw will have to prove a jury would
not have found him guilty of the charged conduct beyond a
In order to prove he would have been found innocent at
trial on the original charges, Shaw, as most civil malpractice
plaintiffs, will have to present a "trial within a trial."12 In
the context of a legal malpractice action arising out of a prior
criminal proceeding, the standard of proof will be a complex one,
in essence, a standard within a standard. Shaw must prove by a
preponderance of the evidence that, but for the negligence of his
attorney, the jury could not have found him guilty beyond a
reasonable doubt. In so proving his legal innocence, Shaw is
limited by the procedural and evidentiary rules applicable in
criminal proceedings and trials. That is, Shaw may prove his
legal innocence only through the use of evidence and witnesses
that would have been admissable if presented at his criminal
If the State pleads the affirmative defense of Shaw's
actual guilt, its burden of proof will be by a preponderance of
the evidence. In order to prove Shaw's actual guilt, the State
is not limited to evidence admissable at the criminal trial to
prove Shaw's guilt beyond a reasonable doubt. As discussed
above, the justifications supporting the rules of procedure and
evidence applicable in the criminal setting are not present in
the civil arena. Thus "evidence of guilt should not be limited
to that introduced in the underlying prosecution." Sullivan v.
Wiener, 1989 WL 65163, at *1 (N.D. Ill. June 5, 1989). "Such
evidence can include any and all confidential communications, as
well as otherwise suppressible evidence of factual guilt."
Bailey, 1993 WL 51765, at *15 n.12.
We AFFIRM the superior court's determination that
prejudgment interest in Shaw's criminal malpractice action did
not begin to accrue until Shaw obtained post-conviction relief
and served the complaint.
We hold that innocence or the actual guilt of a former
criminal defendant is relevant in a subsequent malpractice claim
against his defense attorney. We thus AFFIRM the superior
court's determination that a former criminal defense attorney can
raise the plaintiff's actual guilt as an affirmative defense
against a malpractice action brought by a former criminal
defendant, and that the defense attorney's burden of proof as to
this affirmative defense will be a preponderance of the evidence.
COMPTON, Justice, dissenting in part.
This court has held that the guilt of a defendant in a
criminal proceeding is relevant in a civil malpractice suit
brought by the defendant against his or her former defense
attorney. In Shaw v. State, 816 P.2d 1358 (Alaska 1991) (Shaw
I), we held that "a convicted criminal defendant must obtain post-
conviction relief before pursuing an action for legal
malpractice." Id. at 1360. Therefore only a defendant who is
not guilty of the offense charged, by virtue of having had his or
her conviction set aside, can maintain a civil malpractice suit.
The court now adds further limitations, including creation of a
new concept of criminal guilt, guilt by a preponderance of the
evidence. The court calls this "actual"guilt. The court then
penalizes "actually" guilty plaintiffs by denying them the
ability to recover civil damages resulting from their former
defense attorney's proven negligence. The court holds that
Shaw, in order to maintain a civil suit against his former
defense attorney for malpractice allegedly occurring in the
criminal proceeding, must establish: (a) that the conviction has
been set aside; (b) duty; (c) breach of duty; (d) causation; and
In regard to causation, the court remarks that Shaw
"must establish by a preponderance of the evidence that 'but for'
the attorney's negligent misrepresentation, the criminal jury
would have returned a more favorable verdict." He "will have to
prove a jury would not have found him guilty of the charged
conduct beyond a reasonable doubt . . . to prove he would have
been found innocent at trial on the original charges . . . ."
"In so proving his legal innocence,"[Shaw will be] limited by
the procedural and evidentiary rules applicable in criminal
proceedings and trials and "may prove his innocence only through
the use of evidence and witnesses that would have been admissible
if presented at his criminal trial."13 Slip Op. 12-13.
If Shaw proves all the above, his former defense
attorney may then prove, by a preponderance of the evidence, the
affirmative defense of Shaw's "actual"guilt. The former defense
attorney will not be limited to presenting evidence admissible at
the criminal trial. Evidence may include confidential
communications and otherwise suppressible evidence of "actual"
The burdens imposed on these plaintiffs, coupled with
the advantage given former defense attorneys, virtually
forecloses attorney malpractice suits arising out of criminal
representation. No public policy, nor any case law, can justify
this result. I am unpersuaded by arguments in support of these
further limitations, and therefore dissent.
The court's limited summary of the underlying facts of
this case does not convey the essence of Shaw's claim. Shaw and
Toney Powell were arrested and charged with stealing seventeen
pairs of pants from a mens' store where they both worked as
janitors. Both Shaw and Powell were represented by the same
assistant public defender (PD). The PD advised the court that a
"conflict situation"was arising. However, separate attorneys
for Shaw and Powell were never provided.
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, [defense counsel] 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.
Id. at 1359. Powell and Shaw were both convicted.
Shaw failed to appear for sentencing and was arrested
in 1979 for failure to appear. After sentencing on the original
charge, and while appealing his failure to appear conviction,
Shaw was arrested and pled nolo contendere to being a felon in
possession of a handgun. Id. at 1360. Shaw served time in
prison from December 1979 until March 1980 on the original
conviction, from December 1981 until September 1982 on the
failure to appear charge, and from October 1985 until September
1986 on the felon in possession charge.
On August 15, 1986, the superior court
set aside Shaw's 1973 convictions because
they were constitutionally defective. Id.
(emphasis added). In order to obtain post-
conviction relief based on ineffective
assistance of counsel, Shaw had to show "that
his lawyer's skill . . . fell below that of a
lawyer with ordinary training and skill in
the criminal law, and second, that this
defective performance contributed in some way
to his conviction."
Id. at 1361 n.4 (quoting Larson v. State, 614 P.2d 776, 780
(Alaska 1980)). All time served was traceable to the original
Alaska is already part of the "majority"of courts that
hold innocence relevant in a civil malpractice suit arising out
of a criminal proceeding. The court cites John M. Burkoff,
Criminal Defense Ethics 3.1(c), at 3-11 (1992), as authority
for its proposition that "a vast majority of courts have held
that innocence or actual guilt of the criminal defendant is
relevant." 2 R. Mallen & J. Smith, Legal Malpractice 21.3 at
80 (3d ed. 1992), voices a similar conclusion. Both already have
included Alaska as part of this "majority"of courts which hold
guilt or innocence relevant in the civil malpractice suit,
because of our decision in Shaw I.14
In Stevens v. Bispham, 851 P.2d 556 (Or. 1993), the
Oregon Supreme Court adopted a requirement of post-conviction
relief or some other exoneration of the underlying offense. The
Stevens court cited Shaw, along with Carmel v. Lunney, 511 N.E.2d
1126 (N.Y. 1987), and Glenn v. Aiken, 569 N.E.2d 783 (Mass.
1991), as the "leading cases that require successful post-
conviction relief proceedings, or some other allegation of
innocence of the underlying charge." 851 P.2d at 562.
However, the court mischaracterizes the "majority"
which considers guilt or innocence relevant, because other
jurisdictions which require proof of innocence by the plaintiff
in the civil malpractice suit do not necessarily require post-
conviction relief in the criminal proceeding. In Carmel, 511
N.E.2d at 1127, plaintiff's conviction in the criminal proceeding
had not been successfully challenged prior to the civil
malpractice suit. In Glenn, 569 N.E.2d 783, the plaintiff was
required to prove innocence by a preponderance of the evidence,
but post-conviction relief was held to be a prerequisite to
recovery. Pennsylvania, on the other hand, is in the "minority,"
requiring not only post-conviction relief and proof of innocence,
but also a showing of reckless or wanton disregard of the
plaintiff's interest, before the former criminal defendant can
recover. Bailey v. Tucker, 621 A.2d 108, 114 (Pa. 1993).15
Until today people of the State of Alaska were
considered innocent of crime unless and until found guilty beyond
a reasonable doubt in a criminal proceeding. The court now makes
a distinction between the "actual"guilt and the "legal"guilt of
a criminal defendant. What heretofore has been simply called
guilt is now called "legal"guilt. Slip Op. 6 n.3. "Actual"
guilt, on the other hand, becomes a determination in a civil
trial, by a preponderance of the evidence, that the civil
plaintiff engaged in the criminal conduct of which he or she was
accused in a criminal proceeding. I suggest that the affirmative
defense of "actual" guilt, proven by a preponderance of the
evidence, has no place in our jurisprudence.16
Our criminal justice system enables the state to bring
its tremendous prosecuting resources and authority to bear on an
individual. Thus the system contains numerous safeguards to
protect the individual. These safeguards, both constitutional
and procedural, include the right to the assistance of an
attorney, the right to a speedy trial, the right to a jury trial,
the privilege against self-incrimination and the requirement of
proof beyond a reasonable doubt. "These rules are historically
grounded rights of our system, developed to safeguard men [and
women] from dubious and unjust convictions, with resulting
forfeitures of life, liberty, and property." Brinegar v. United
States, 338 U.S. 160, 174 (1949). These safeguards enable us to
be more certain that when we label someone "guilty,"we can be
reasonably confident that they are in fact guilty. However, they
are guilty of the crime charged. The court now abolishes the
safeguards that ensure this degree of accuracy and brands a
person "actually"guilty of a crime, if a trier of fact decides
it is more probably true than not that the person committed the
crime originally charged.
The court justifies adjudication of "actual"guilt on
the basis of distinctions between criminal and civil proceedings.
It makes the astonishing assertion that "a primary goal, perhaps
the paramount goal, of the criminal justice system is to protect
the innocent accused against erroneous conviction." Op. at 6-7.
It then notes that while reliable fact finding is a goal of both
proceedings, "[i]n the criminal system . . . the goal of reliable
factfinding and the goal of protecting the innocent accused may
conflict."Op. at 8. (Footnote omitted). In that case, reliable
factfinding must give way to protecting the innocent accused, and
"the determination of the truth . . . is subsumed in order to
fulfill the goal of protecting the innocent."Op. at 9. There
being no such conflict in the civil system, the former defendant
does not have the constitutional and procedural safeguards
afforded in a criminal proceeding, including proof beyond a
reasonable doubt. Thus we can adjudicate "actual"guilt.
If a conviction is set aside because of the ineffective
assistance of counsel, and proceedings against a defendant
dismissed, was the conviction erroneous? Has the goal of
protecting an innocent accused been achieved? Is the defendant
innocent of the crime for which he or she was charged? The
answer in each instance is "yes." A judicial determination of
whether the defendant is guilty of the crime originally charged
has been completed.
The court denigrates the criminal justice system by its
implicit assertion that the greater protection afforded
defendants in criminal proceedings, such as constitutional and
procedural safeguards, including the heightened burden of proof,
impede factfinding, obscure truth and free defendants on
technicalities. Its attempt to then justify a civil
determination of "actual"guilt by trumpeting the factfinding,
truth revealing pre-eminence of the civil justice system rings
hollow. The court conveniently overlooks the fact that our civil
justice system endorses such procedures as establishment and
preclusion orders which render fact and truth absolutely
Civil cases involve questions of civil responsibility,
not questions of criminal guilt or innocence. In this case, Shaw
must first have had his conviction set aside. This means that he
must have proven that his former defense attorney's actions fell
below the standard of conduct for a lawyer with ordinary training
and skill in criminal law, and that this defective performance
contributed to the conviction. Duty and breach of duty have been
admitted. Thus, even though the negligence of the former
defense attorney has been established, the court holds that the
attorney may avoid civil responsibility if the attorney can
prove, by a preponderance of the evidence, that Shaw was
"actually"guilty of the crime charged.
The court asserts that public policy demands this
result. "[C]ivil recovery should not be a tool for shifting an
individual's responsibility for the individual's criminal acts."
Slip Op. 10. The court cites Adkinson v. Rossi Arms Co., 659
P.2d 1236 (Alaska 1983) and Lord v. Fogcutter Bar, 813 P.2d 660
(Alaska 1991). In Adkinson, a plaintiff convicted of
manslaughter attempted to bring a tort action against the gun
manufacturer for personal losses suffered as a result of
imprisonment. In Lord, a plaintiff convicted of kidnapping,
rape, and assault attempted to bring a tort action against the
bar, which served him alcohol, for the damages he suffered as a
result of his imprisonment.
The court notes that Adkinson and Lord differ from the
present case in that Shaw does not claim his attorney contributed
to the criminal act. The court conveniently fails to note that
both Adkinson and Lord were convicted and had not challenged the
validity of the convictions. I agree that we should not allow
the convicted criminal to "shift"the responsibility for the
consequences of his or her criminal acts. When, as a result of
the criminal proceeding, it has been determined that a defendant
is guilty, the defendant alone should bear the responsibility and
However, the public policy which denied recovery to
civil plaintiffs in Adkinson and Lord is fully served by our
decision in Shaw I, which requires the criminal defendant to
obtain post-conviction relief prior to bringing his or her civil
malpractice suit. Once the criminal defendant has obtained post-
conviction relief and his or her conviction has been set aside,
there has been a judicial determination that there is no criminal
responsibility. There simply is no public policy which should
allow a negligent attorney to shift the responsibility for that
attorney's negligence onto a plaintiff who has demonstrated that
he or she is not guilty of the crime charged.
The court's adoption of the rule that guilt by a
preponderance of the evidence is an affirmative defense to a
civil malpractice suit has three unfortunate results. First, as
a practical matter a person who is in fact innocent of criminal
conduct is more likely to be found guilty when preponderance of
the evidence is the standard of proof than when guilt beyond a
reasonable doubt is the standard of proof. Safeguards in
criminal proceedings that ensure that innocent people are not
found guilty will not apply in the civil malpractice suit.
Second, a person who engages in specific conduct is
treated very differently if charged with a crime, compared to a
person who engages in the same conduct, but is not charged with a
crime. For example, a civil defendant -- not charged with a
crime -- who commits fraud, and is found civilly liable because
of his or her attorney's malpractice, may recover civil damages
against the attorney in a civil malpractice suit, including
punitive damages, regardless of what the defendant did in fact.
However, a criminal defendant who commits the same fraud, yet who
would not have been convicted but for the attorney's malpractice,
may never even get his or her case before the trier of fact.
Third, attorneys in civil cases are treated very
differently from attorneys in criminal cases. The criminal
defense attorney will no longer be found civilly liable for
malpractice if he or she defends a person later found "actually"
guilty of the crime originally charged, by a preponderance of the
evidence. Yet attorneys in civil proceedings will continue to be
exposed to liability for civil malpractice, regardless of what
their client did or did not do in fact.
Alaska already places the very heavy burden on a
criminal defendant to obtain post-conviction relief as a
prerequisite to maintaining a civil malpractice suit against his
or her former defense attorney. Allowing a negligent attorney to
escape liability by permitting a trier of fact to determine that
the civil plaintiff, who no longer stands convicted of any crime,
probably committed the crime for which he or she has not been
convicted, violates principles of our criminal justice system and
our civil tort system. The civil plaintiff has already proven,
by post-conviction relief in the criminal proceeding, that the
former defense attorney's skill fell below minimal standards of a
lawyer with ordinary skill and training in criminal law, and that
this defective performance contributed to the conviction.
If at all, I would only recognize an affirmative
defense that despite the attorney's negligence, the civil
plaintiff would have been convicted of the crime originally
charged, beyond a reasonable doubt, at a trial in which all
constitutional and procedural safeguards were afforded.
1. Both issues in this case concern questions of law. We
review questions of law de novo. Langdon v. Champion, 745 P.2d
1371, 1372 n.2 (Alaska 1987) (citations omitted).
2. "Professional malpractice consists of four elements:
`(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.'" Belland v. O.K. Lumber Co., Inc.,
797 P.2d 638, 640 (Alaska 1990) (quoting Linck v. Barokas &
Martin, 667 P.2d 171, 173 n.4 (Alaska 1983)).
3. We make a distinction in this case between the "actual"
guilt or innocence of a defendant and the "legal" guilt or
innocence of a defendant. "Legal"guilt or innocence is that
determination made by the trier of fact in a criminal trial.
Thus a defendant found "legally"guilty has been found guilty
beyond a reasonable doubt by a jury of his peers in a criminal
adjudication. "Actual" guilt is intended to refer to a
determination in a civil trial, by a preponderance of the
evidence, that the defendant engaged in the conduct he was
accused of in the prior criminal proceeding. See also Glenn v.
Aiken, 569 N.E.2d 783, 789 (Mass. 1991) (Liacos, C.J.,
concurring) ("A criminal trial is an adjudication of a
defendant's legal guilt. As a result, a jury verdict does not
address necessarily the issue of a defendant's actual guilt. Two
examples suffice to make the point. A defendant who committed
the crime may be acquitted if the jury, based on the evidence
introduced by the prosecution, had a reasonable doubt as to the
defendant's legal guilt. Or alternatively, a defendant may be
acquitted because evidence of guilt is suppressed due to it being
tainted by some constitutional violation by law enforcement
4. John M. Burkoff, Criminal Defense Ethics 3.1(c), at 3-
11 (1992); see also Glenn v. Aiken, 569 N.E.2d 783, 788 (Mass.
1991) (in order to recover for attorney malpractice, plaintiff
must prove by a preponderance of the evidence that he is innocent
of the crime charged); Carmel v. Lunney, 511 N.E.2d 1126, 1128
(N.Y. 1987) (unless a plaintiff can assert his innocence, "public
policy prevents maintenance of a malpractice action against his
attorney"); Bailey v. Tucker, 1993 WL 51765, at *4 (Pa. Feb. 26,
1993) (plaintiff must prove that he is innocent of the crime
charged or any lesser included offense).
5. Such protections include the right to the assistance of
an attorney, the right to a speedy trial, the right to a jury
trial, the privilege against self-incrimination, and the
prohibition against double jeopardy. See Brinegar v. United
States, 338 U.S. 160, 174 (1949) (noting that "[t]hese rules are
historically grounded rights of our system, developed to
safeguard men from dubious and unjust convictions, with resulting
forfeitures of life, liberty, and property").
6. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme
Court recognized the protective role of the Constitution, noting:
"The private interest in the accuracy of a criminal proceeding
that places an individual's life or liberty at risk is almost
uniquely compelling. Indeed, the host of safeguards fashioned by
this Court over the years to diminish the risk of erroneous
conviction stands as a testament to that concern." Id. at 78.
7. We have previously noted this conflict, quoting Justice
A criminal trial is in part a search for
truth. But it is also a system designed to
protect "freedom"by insuring that no one is
criminally punished unless the State has
first succeeded in the admittedly difficult
task of convincing a jury that the defendant
is guilty. . . . The Framers decided that
the benefits to be derived from the kind of
trial required by the Bill of Rights were
well worth any loss in "efficiency" that
McCracken v. Corey, 612 P.2d 990, 996 n.15 (Alaska 1980) (quoting
Williams v. Florida, 399 U.S. 78, 113-14 (1970) (Black, J.,
concurring and dissenting)).
8. Justice Harlan also discussed the different views held
concerning the effects of erroneous outcomes in the civil and
criminal systems. In re Winship, 397 U.S. at 370-72 (Harlan, J.,
concurring). He noted that in a civil suit for money damages,
"we view it as no more serious in general for there to be an
erroneous verdict in the defendant's favor than for there to be
an erroneous verdict in the plaintiff's favor. . . . In a
criminal case, on the other hand, we do not view the social
disutility of convicting an innocent man as equivalent to the
disutility of acquitting someone who is guilty." Id. at 371-72,
quoted in Alto, 589 P.2d at 406-07 n.16.
9. See Ferri v. Ackerman, 444 U.S. 193, 198 (1979)
("[W]hen state law creates a cause of action, the State is free
to define the defenses to that claim . . . .").
In designating guilt-in-fact as an affirmative defense,
we note its similarity to other affirmative defenses. The
traditional defenses of contributory/comparative negligence and
assumption of the risk both look to the plaintiff's actions.
Each defense asks how plaintiffs might be responsible for their
own injuries. Guilt-in-fact has the same focus. In other words,
if plaintiffs actually engaged in criminal conduct, then they are
partially responsible (and more culpable) for their own resulting
injuries (such as incarceration). Under these circumstances, the
plaintiff's own conduct precludes his or her recovery, just as
with other conventional defenses.
10. Since we have recognized an affirmative defense in this
opinion, the State has the option of amending its pleading to
allege such a defense.
11. The issue of damages is not currently before this court.
12. The "trial within a trial"is discussed by Mallen and
Smith in their treatise on malpractice:
[The elements of the legal malpractice
action] are traditionally handled by having a
trial within a trial, the goal of which is to
determine what the result of the underlying
proceeding or matter should have been. For
example, when the error relates to the
failure to offer or exclude evidence in the
underlying action, the trier of fact must
determine what effect the absence or presence
of the evidence had and determine what the
"new" result should have been. The trial
judge must decide issues of law which were
not previously urged or adequately briefed.
Mallen & Smith, supra, 27.1, at 624.
13. It is not possible to reconcile this discussion of
causation with the court's discussion of causation in Shaw I.
One justification advanced in Shaw I for requiring a defendant to
obtain post-conviction relief as a prerequisite to maintenance of
a civil malpractice suit against former defense counsel was that
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
Shaw, 816 P.2d at 1361 (citation omitted) (emphasis added). In a
footnote to the citation, the court remarks:
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
369 (Alaska 1973).
Unless successful post-conviction relief based on the
ineffective assistance of counsel satisfies the causation element
of the civil malpractice suit, there will be no promotion of
judicial economy, and that justification for requiring post-
conviction relief evaporates.
14. It seems redundant for this court to now claim it is
aligning itself with a "majority"of courts of which it is
already a part.
15. A number of courts do not require either post-
conviction relief or innocence as elements of a civil malpractice
case. See Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989) (holding
post-conviction relief is not an element of legal malpractice
action arising from criminal representation); Schlumm v. Terrence
J. O'Hagam, P.C., 433 N.W.2d 839 (Mich. App. 1988) (holding that
the trial court erred in ruling that the plaintiff must plead and
prove his innocence).
16. Neither Burkoff nor Mallen & Smith suggest a defense of
"actual"guilt. In the treatises they have written, not one case
is cited that supports the proposition that proof of "actual"
guilt, by a preponderance of the evidence, is an affirmative
defense to a civil malpractice suit brought by a plaintiff whose
criminal conviction has been set aside.