Bloomer v. Gibson

Annotate this Case

Bloomer v. Gibson (2004-540); 180 Vt. 397; 912 A.2d 424

2006 VT 104

[Filed 20-Oct-2006]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2006 VT 104

No. 2004-540

Robert A. Bloomer, Jr. Supreme Court

On Appeal from
v. Rutland Superior Court

David A. Gibson, Esq. October Term, 2005

Richard W. Norton, J.

Robert A. Bloomer, Jr., Pro Se, Addison, Plaintiff-Appellant.

Shannon A. Bertrand of Kenlan, Schwiebert & Facey, P.C., Rutland, for
Defendant-Appellee.

PRESENT: Dooley, Johnson and Skoglund, JJ., and Teachout, Supr. J. and
Allen, C.J. (Ret.), Specially Assigned

¶ 1. DOOLEY, J. Plaintiff, Robert A. Bloomer, Jr., brought this
action against defendant, David Gibson, for malpractice in connection with
his representation of plaintiff in a federal criminal case. The action was
eventually tried to court on a theory of breach of contract and resulted in
a verdict for defendant. On appeal, plaintiff argues that the court erred
in denying him a trial by jury and in applying an "actual innocence"
standard to his claims of malpractice and breach of contract. We hold that
the court properly decided that plaintiff waived his right to trial by jury
and that plaintiff cannot recover the damages he seeks. We affirm.

¶ 2. In 1991, plaintiff was charged in a federal criminal
prosecution, and, with the help of his father, retained the services of
defendant, David A. Gibson, for representation relating to those charges.
Defendant engaged in substantial legal and factual investigation of the
case, which eventually went to trial in April 1991. The trial lasted two
weeks, and a jury eventually found plaintiff guilty on all six of the
federal charges. The judge sentenced plaintiff to 121 months in federal
prison. Plaintiff appealed the conviction and sentence to the United
States Court of Appeals for the Second Circuit; the government appealed the
sentence.

¶ 3. The court of appeals upheld the conviction, United States v.
Bloomer, 4 F.3d 115 (2d Cir. 1993), but found plaintiff's sentence had been
improperly calculated and remanded for further sentencing. Plaintiff was
then sentenced to 188 months in federal prison, which was later affirmed.
United States v. Bloomer, 43 F.3d 1457 (2d Cir. 1994) (Table).

¶ 4. Three years after his conviction, plaintiff filed a
post-conviction-relief petition in federal court under 28 U.S.C. § 2255, in
which he argued that he had received ineffective assistance of counsel by
defendant at trial in relation to an improper jury charge. The district
court dismissed the complaint, but the court of appeals found the trial
court's jury charge on reasonable doubt was improper and remanded the case
to the district court to determine if defendant's representation was
ineffective. (FN1) Bloomer v. United States, 162 F.3d 187, 195 (2d Cir.
1998).

¶ 5. On remand, in a brief entry order decision, the district court
found that defendant had rendered ineffective assistance of counsel for
failing to object to the reasonable doubt instruction and, accordingly,
granted plaintiff a new trial. Pursuant to the new trial option, plaintiff
elected to plead guilty to one count of the original indictment and was
sentenced to time served, which amounted to approximately eighty-seven
months in prison.

¶ 6. Plaintiff brought this action against defendant in 1999,
alleging that defendant committed malpractice in nine specified instances
and acted "maliciously, grossly negligently and in utter disregard of the
rights of plaintiff." He alleged that as a result of defendant's
malpractice he was "severely harmed, including spending 7 years in prison."
He sought both compensatory and punitive damages. About ten months later,
he moved to amend the complaint to include the following new grounds for
relief: intentional infliction of emotional distress, breach of contract,
and failure to maintain plaintiff's client file. The court granted the
motion with respect to the intentional infliction of emotional distress
claim, but denied it as to the other two claims. As to the breach of
contract claim, the court indicated that plaintiff had stated at the
hearing on the motion that he added the claim solely to obtain the return
of the fee his family paid defendant. The court stated that return of the
fee was part of the damages allowed for malpractice.

¶ 7. The court granted defendant's motion for summary judgment with
respect to plaintiff's malpractice claims. (FN2) Recognizing that this
decision left plaintiff without a claim for the return of the fees paid to
defendant, the court reconsidered the denial of the motion to amend to add
a breach of contract claim. On May 6, 2001, plaintiff submitted an amended
complaint alleging only breach of contract. The complaint stated that
"[i]mplicit in the agreement [between plaintiff and defendant] was that
[d]efendant would perform with a minimum level of competence and diligence"
and went on to itemize ten specific duties that defendant assumed. It then
stated that "[d]efendant failed to perform to the minimum standards as
required by the agreement" and itemized thirteen different instances in
which defendant's representation fell below minimum standards. It asked
for damages without specifying an amount. The trial court denied
defendant's motion for summary judgment on the breach of contract claims.
The case was tried to court over five trial days in 2004 and 2005.
Plaintiff appeals from the Rutland Superior Court decision of November 22,
2004, granting judgment to defendant on the breach of contract counts.

¶ 8. On appeal, plaintiff argues that the superior court erred in
holding that he had waived his right to a jury trial, and in repeating that
holding in response to his amended complaint, and in adopting an actual
innocence rule to grant judgment to defendant on plaintiff's breach of
contract claims. We address these issues.

¶ 9. It is undisputed that plaintiff had a right to trial by jury in
this case. Vt. Const. ch. I, art. 12; Vt. Const. ch. II, § 38; V.R.C.P.
38(a). To invoke the right, a plaintiff must demand a jury trial pursuant
to our procedural rules. See Muzzy v. Curtis, 127 Vt. 516, 517, 253 A.2d 149, 150 (1969) ("Proper and effective administration of the courts
requires that reasonable notice be given of the intention of a party to
avail himself of his right, in a civil case, to put his case before a
jury."). Rule 38 of the Vermont Rules of Civil Procedure governs the right
to trial by jury and provides that "[a]ny party may demand a trial by jury
of any issue triable of right by a jury by (1) serving . . . a demand . . .
not later than 10 days after the service of the last pleading . . . ."
V.R.C.P. 38(b) (emphasis added). Failure to serve and file a demand as
required by Rule 38(b) is a waiver of the right to trial by jury. Id.
38(d).

¶ 10. Plaintiff did not request a trial by jury in his 1999
complaint, nor did he indicate he desired a jury trial in response to any
of defendant's answers, which were the final pleadings. See V.R.C.P. 7(a)
(specifying pleadings). Plaintiff finally submitted a request for trial by
jury on April 12, 2000, which the trial court rejected as waived by
plaintiff for failure to timely file in accordance with V.R.C.P. 38(b).
Subsequently, plaintiff included a jury demand with his amended complaint
in May 2001. Upon defendant's motion, however, the trial court struck that
jury demand, holding that where a jury demand has been waived it is not
revived in an amended complaint that adds no new issues to a litigation,
but merely offers an alternative theory for recovery.

¶ 11. Plaintiff argues on appeal that Rule 38(d) is invalid, or
cannot be interpreted to apply to a situation where a plaintiff demands a
jury trial three years before trial. He further argues that his right to a
jury trial was revived by the filing of the amended complaint.

¶ 12. We reject plaintiff's argument that the rule is invalid. The
initial version of the Vermont Rules of Civil Procedure, including Rule 38
in substantially the same form as it exists today, was adopted in 1971
pursuant to specific authority granted by the Legislature in 12 V.S.A. § 1.
See 1969, No. 119 § 1 (amending 12 V.S.A. § 1); Foreward, Vermont Rules of
Civil and Appellate Procedure and District Court Civil Rules (1971)
(statement of Chief Justice James S. Holden on the history of the rules).
Rule 38 provides the procedure for administration of the jury trial right.
As we said in Hale v. Melendy, 139 Vt. 28, 30, 421 A.2d 1296, 1297 (1980),
the "rules are designed to preserve a litigant's constitutional right to a
jury trial, Vt. Const. ch. II, § 38, while also promoting the effective
administration of justice." More recently, we have noted that "Vermont
courts have long exercised the power to adopt administrative rules having
an incidental effect on the availability of jury trials in some cases." In
re Vermont Supreme Court Admin. Dir. No. 17, 154 Vt. 392, 399, 579 A.2d 1036, 1040 (1990). Pursuant to that authority, we held in Muzzy, 127 Vt.
at 517, 253 A.2d at 150, that rules consistent with the Constitution can
require that "reasonable notice be given of the intention of a party to
avail himself of his right, in a civil case, to put his case before a
jury." We see no reason to abandon that holding here.

¶ 13. We recognize that plaintiff was required to make his jury
demand far in advance of the trial in this case. The court has, however,
no way of knowing when trial will be reached, and the date of trial, if a
case goes that far, is determined in part by whether the case will be tried
to court or to a jury. The identity of the fact-finder, whether judge or
jury, will have an influence on how the case is prepared and pretrial
proceedings conducted. Thus, it is reasonable for the rules to require
identification of the fact-finder early in the case.

¶ 14. Plaintiff failed to request a trial by jury within the
required time-frame specified in Rule 38(b) and, as a result, waived his
right to a trial by jury in this case, V.R.C.P. 38(d). Although the court
has discretion to allow a jury trial where a timely demand is not made, id.
39(b), we find no abuse of that discretion here. The only argument
plaintiff made on this point was that he was pro se and unaware of the
rule. The court does not abuse its discretion where it enforces the rules
of civil procedure equitably, even against a pro se litigant. See Nevitt
v. Nevitt 155 Vt. 391, 401, 584 A.2d 1134, 1140 (1990) (holding that
although trial courts may not take unfair advantage of pro se litigants,
the trial court is not responsible for offering affirmative help to those
appearing pro se).

¶ 15. Plaintiff further argues that even if he did not make a timely
demand for a jury trial in his original complaint, his subsequent amended
complaint, in which he did demand a trial by jury, was a timely demand
under the Rules and, as such, the trial court should have provided him with
a jury trial on the claims in the amended complaint. Plaintiff contends
that because his amended complaint is a "pleading" and because Rule 38(b)
allows for a jury demand within ten days of the "last pleading directed to
such issue," his subsequent demand for a jury was sufficient to grant him
that right.

¶ 16. The law applicable to this argument is set out in My Sister's
Place v. City of Burlington, 139 Vt. 602, 433 A.2d 275 (1981), where we
followed the decisions of the United States Court of Appeals for the Second
Circuit under the identical federal rule. There, we held that "
'amendments of the pleadings that do not change the issues do not revive
this right.' " Id. at 611, 433 A.2d at 281 (internal citations omitted).
We went on to explain that "when the matrix of facts pertinent to a
complaint are not changed, the addition of a new legal theory for recovery
is not sufficient to restore the right to a jury." Id. My Sister's Place
is consistent with the law as it has developed under the identical federal
rule. See 9 C. Wright and A. Miller, Federal Practice and Procedure §
2320, at 152-54 (2d ed. 1995) ("[I]f the amended . . . pleading does not
raise a new issue, but merely changes the theory of the case or the relief
requested, then a jury trial right waived by a failure to demand in
connection with the original pleading is not revived."); Anno., Rule 38 of
Federal Rules of Civil Procedure: Waived Right to Jury Trial as Revived by
Amended or Supplemental Pleadings, 18 A.L.R. Fed. 754 et seq. (1974 & Supp.
2005).

¶ 17. Plaintiff has two arguments as to why the amended complaint
raised "new issues" and gave him a renewed right to trial by jury, which he
timely claimed. The first is that his amended complaint is based on a
different legal theory, that is, breach of contract, rather than the
malpractice tort theory alleged in the initial complaint. This is,
however, exactly the kind of "addition of a new legal theory" that does not
give a renewed right to trial by jury under My Sister's Place. The trial
court held: "[A]ll of the so-called contractual duties that the plaintiff
raises are also general professional duties of a lawyer. Hence, this
action is essentially a tort claim veiled as a breach of contract claim."
As we discuss in more detail in the next section of this opinion, we agree
with the trial court's analysis. A new theory alone does not raise a new
issue if it is based on the same matrix of facts. Lutz v. Glendale Union
High Sch., 403 F.3d 1061, 1066 (9th Cir. 2005). We reject the argument
that the change of theory gave plaintiff a new opportunity to demand a jury
trial.

¶ 18. The second argument is that the amended complaint raised new
issues by adding specific claims of defendant's action or inaction that
fell below the "minimum standards" required by the employment contract.
There were five such actions added by the amended complaint-for example,
that "[d]efendant failed to adequately prepare for plaintiff's suppression
hearing, even failing to identify the leading case on suppression." The
problem with this argument is that neither the specification of malpractice
actions in the first complaint, nor the specification of instances of
performance below minimum standards in the second complaint, were
exhaustive. Thus, the original complaint said that "[i]n his
representation of plaintiff, defendant committed malpractice in a number of
instances including;" (emphasis supplied), and went on to describe nine
instances. The amended complaint said "defendant failed to perform to the
minimum standards as required by the agreement including the following
instances:," (emphasis supplied), and went on to describe thirteen
instances. Reflecting the open-ended nature of plaintiff's lists, other
instances, such as failure to claim double jeopardy and failure to
communicate settlement offers, were added at trial.

¶ 19. We believe that both the complaints addressed only one common
matrix of fact-defendant's representation of plaintiff in his criminal
trial and appeal, and in post-trial proceedings. In both complaints,
plaintiff alleged that there were many instances of malpractice of which
only some were detailed. The second complaint added more detail but not
more counts. See Advent Elecs., Inc. v. Buckman, 918 F. Supp. 260, 263
(N.D. Ill. 1996) (finding the amended complaint merely alleges new legal
theories and " 'particularized facts,' rather than new factual issues, and
thus cannot revive the waived right to a jury"). We cannot conclude that
the amended complaint raised new issues that created a new right to trial
by jury.

¶ 20. Plaintiff's next argument, and the crux of his appeal,
involves his claim for breach of contract by legal representation that fell
below minimum standards. He argues that the superior court erred in
failing to decide that defendant's substandard representation required that
he refund the fees charged for that representation. We affirm the trial
court's rejection of this argument on the ground of lack of causation,
although for a different reason than the trial court.

¶ 21. To understand plaintiff's issue, we start with the two main
decisions of the superior court. The first dismissed plaintiff's
malpractice complaint on summary judgment on two related grounds. The
court held that plaintiff must be innocent of the crime for which he was
charged in order to bring a malpractice action against his criminal defense
lawyer, and further held plaintiff's eventual guilty plea established that
he was not innocent as a matter of law. Alternatively, the court held that
plaintiff could not show that defendant's negligence was the proximate
cause of plaintiff's damages, again because the guilty plea established
that those damages were caused by plaintiff's criminal conduct. On this
alternative point, the court added:

Although the plaintiff in the instant case has waived any claim
for damages arising from his incarceration, . . . he does seek to
recover as a measure of damages on his malpractice claim the
attorney's fees paid to the defendant. However, those attorney's
fees were incurred as a direct result of the defendant's own
criminal conduct, not as a result of the defendant's alleged
inadequate representation. In other words, the defendant's
alleged negligence did not cause the plaintiff to incur these
fees, rather, it was his unlawful conduct in the first instance
which necessitated that expenditure.

Despite this ruling, the court denied defendant's summary judgment motion
on plaintiff's amended complaint alleging breach of contract, necessitating
the trial on that complaint.

¶ 22. After trial on the breach of contract theory, the court issued
a twenty-three page decision, finding against plaintiff on all his claims
of substandard representation, except one. The court found that by failing
to object to the jury instruction on reasonable doubt, and failing to raise
the issue on appeal, "defendant's representation lacked due care" with
respect to this issue. The court went on to hold, however, that
plaintiff's contract claims were actually tort claims and applied the
causation standard that it had applied in the summary judgment decision.
(FN3) Thus it held that plaintiff could not prevail because he was not
"actually innocent of the charges" and could not establish proximate cause.

¶ 23. On appeal, plaintiff attacks primarily the use of the actual
innocence rule, but also the decision on causation. His position is:

Appellant seeks only to be made whole, i.e. to recover his fees
and expenses incurred in connection with appellee Gibson's
ineffective representation. . . . All of plaintiff's criminal
convictions were reversed solely due to Mr. Gibson's ineffective
assistance. . . . This left appellant in exactly the same
position he was before Mr. Gibson had ever entered an
appearance-under indictment and facing trial. Any services
rendered by Mr. Gibson were thus without value to appellant.

Defendant urges us to adopt the actual innocence rule.

¶ 24. Although in Fitzgerald v. Congleton, 155 Vt. 283, 290, 583 A.2d 595, 600 (1990), we noted in the context of applicable statutes of
limitations that "[t]he line that delineates the underlying nature of a
cause of action is not always a clearly defined one, particularly in a
legal malpractice action," our more recent cases have held that an action
to recover for legal malpractice lies in tort, on the theory of the
attorney's negligence. See Roberts v. Chimileski, 2003 VT 10, ¶ 15, 175
Vt. 480, 820 A.2d 995 (mem.) ("[L]egal malpractice action is at base a
negligence action: plaintiff must prove that the attorney was in fact
negligent and that this negligence was the proximate cause of plaintiff's
injury."); Knott v. Pratt, 158 Vt. 334, 335, 609 A.2d 232, 233 (1992) (to
recover for legal malpractice, "plaintiff must prove both that defendant
was negligent and that the negligence proximately caused plaintiff's
harm"). In both his original complaint, and in the amended complaint,
plaintiff alleged that defendant failed to perform "in accordance with
established standards of skill and care." Hedges v. Durrance, 2003 VT 63,
¶ 6, 175 Vt. 588, 834 A.2d 1 (mem.). Plaintiff did not allege that
defendant breached any special obligations contained in his employment
contract with defendant. Indeed, he could not make such an allegation
because the contract was oral and contained no specific or special
obligations. In these circumstances, the superior court correctly labeled
plaintiff's amended complaint as containing "a tort claim veiled as a
breach of contract claim." See Chavez v. Saums, 571 P.2d 62, 65 (Kan. Ct.
App. 1977) (holding that "[w]hen an act complained of is a breach of
specific terms of the contract, without any reference to the legal duties
imposed by law upon the relationship created thereby, the action is in
contract," but where "the gravamen of the action is a breach of the legal
duty and not the contract itself, the action is in tort") (internal
citations omitted); Johnson v. Carleton, 765 A.2d 571, 573 n.3 (Me. 2001)
(directing that legal malpractice claims be analyzed under tort, not
contract, where the claim does not refer to an express contract).

¶ 25. Although plaintiff raised tort claims to establish liability,
he sought only the return of the fee paid to defendant, damages normally
associated with breach of contract. See Restatement (Second) of Contracts
§ 347(a) (1981) (damages for breach of contract include "loss in the value
to him of the other party's performance caused by its failure or
deficiency"). In fact, his argument is that the one breach of duty found
by the superior court should entitle him to the return of the entire fee
paid to defendant, as if defendant performed no services at all. In
effect, the remedy would be a rescission of the employment contract with
complete return of plaintiff's consideration. Plaintiff justifies his
right to this remedy on the fact that defendant's representation brought
about no change in his legal situation, as if the contract guaranteed a
favorable result.

¶ 26. By narrowing his claim for relief solely to return of the
fees paid defendant, plaintiff in essence accepted the ruling of the
superior court that he could show no consequential damages in view of his
guilty plea and reconviction based upon that plea. In addressing the fees,
however, the superior court went further holding that "defendant's alleged
negligence did not cause the plaintiff to incur these fees, rather, it was
his unlawful conduct in the first instance which necessitated that
expenditure." In effect, the court found no causal nexus between the fees
and the supposed malpractice, and further concluded that the fees were the
result of plaintiff's underlying guilt and were therefore not recoverable.
We agree with plaintiff that the superior court's narrower proximate cause
theory based on plaintiff's reconviction does not cover his claim for
return of the fees paid to defendant. Nevertheless, we conclude that
plaintiff cannot establish causation for the fees. (FN4)

¶ 27. The measure of damages for malpractice is "all damages
proximately caused by the wrongful act or omission." 3 R. Mallen & J.
Smith, Legal Malpractice § 20.4, at 13 (2006 ed.); see State v. Therrien,
2003 VT 44, ¶ 15, 175 Vt. 342, 830 A.2d 28 ("[M]alpractice liability cannot
arise unless the lawyer's negligence is a proximate cause of the claimed
harm."). The fees charged by defendant were not caused by defendant's
malpractice; they were charged irrespective of the quality of defendant's
representation. On this point, we distinguish between two types of
attorney's fees. If plaintiff had incurred legal fees to correct the
adverse consequences of defendant's malpractice, those fees might be
recoverable because they were "caused by the wrongful act or omission."
Bourne v. Lajoie, 149 Vt. 45, 53 n.3, 540 A.2d 359, 364 n.3 (1987); see
Therrien, 2003 VT 44, ¶¶ 19-21 (finding attorney may have been liable for
subsequent damages proximately caused by attorney's negligence). On the
other hand, at least where defendant took some action "for which
plaintiff[] received some value," plaintiff cannot recover attorney's fees
paid to defendant. (FN5) Ramp v. St. Paul Fire & Marine Ins. Co., 269 So. 2d 239, 246 (La. 1972) (cited and quoted in Bourne).

¶ 28. Here, plaintiff apparently incurred no legal fees in
correcting defendant's error because he was provided counsel at public
expense. In any event, he has made no claim for such expenses. Plaintiff
received the value of weeks of defendant's pretrial investigation and trial
representation; the quality of his representation fell below acceptable
minimums only with respect to the jury instructions. In such
circumstances, plaintiff cannot recover the fees he paid defendant in a
malpractice action.

¶ 29. Because we hold that defendant's malpractice is not the cause
of the fees paid to him, we do not decide whether we would adopt the actual
innocence rule as an element of a lawyer malpractice action against a
criminal defense lawyer.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

¶ 30. TEACHOUT, Supr. J., Specially Assigned, dissenting in part.
I dissent from that portion of the decision in which the majority declines
to rule on the use of the actual innocence rule and affirms the trial court
judgment using a different rationale. I do not join the majority for three
reasons. First, the case is decided on grounds of which neither party had
notice or an opportunity for briefing or argument. Second, the legal
principle on which the decision is founded is unclear. Finally, the
application of the actual innocence rule is overly broad on the facts of
this case. I would remand for a factual finding on whether defendant's
negligence proximately caused harm to plaintiff.

I. Sua sponte grounds for the decision

¶ 31. In this case, the trial court made detailed findings of fact
and concluded that defendant was negligent in failing to object to a faulty
jury instruction on reasonable doubt and failing to challenge the
instruction on appeal. The court did not make a factual finding on whether
the negligence proximately caused harm to plaintiff. Instead, the trial
court applied an actual innocence rule developed in other jurisdictions to
preclude plaintiff from recovering any damages for defendant's negligent
acts. Both parties devoted all of their written and oral arguments in this
portion of the case to the merits of applying the actual innocence rule as
a matter of law. The majority affirms the trial court, but specifically
declines to address the arguments on the use of the actual innocence rule,
and instead decides the case on an alternative rationale raised sua sponte
by the Court.

¶ 32. The appellate process normally calls for the Court to decide
legal issues raised by the appellant after both sides have had adequate
notice of the issues and opportunity for briefing and argument. State v.
Jewett, 146 Vt. 221, 222-23, 500 A.2d 233, 234-35 (1985); State v. Taylor,
145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) ("It is only in the rare and
extraordinary case that this Court will consider, sua sponte, issues not
properly raised on appeal before us."); State v. Settle, 141 Vt. 58, 61,
442 A.2d 1314, 1315 (1982) ("We have held, and we reiterate here that, in
all but a few exceptional instances, matters which are not briefed will not
be considered on appeal."); see also V.R.A.P. 28(a) (appellant's brief
should explain what the issues are, how they were preserved, and what
appellant's contentions are on appeal, with citations to the authorities,
statutes, and parts of the record relied on); V.R.A.P. 30(a) (appellant
must file printed case that contains extracts from record below as are
necessary to present fully the questions raised).

¶ 33. The opportunity to present arguments on the legal issue upon
which a case is to be decided is fundamental to sound legal process, and it
is important to public confidence in the judiciary. See generally A.
Milani & M. Smith, Playing God: A Critical Look at Sua Sponte Decisions by
Appellate Courts, 69 Tenn. L. Rev. 245, 271-79 (2002). Milani and Smith
argue that sua sponte decisions by appellate courts are: (1) inconsistent
with the fundamental principles of due process that parties should have
notice and opportunity to be heard on the determinative issue in the case;
(2) inconsistent with the American judicial system's reliance on the
adversary process because they are contrary to its (a) central premise that
the adversarial clash provides a court with the best arguments and analysis
on an issue; (b) emphasis on neutral and passive decision makers; and (c)
commitment to party presentation of evidence and arguments; and (3) an
abuse of judicial discretion. Id. at 262-290.

¶ 34. The Court occasionally departs from the usual process and
decides cases on legal grounds not raised or briefed by the parties or
decided by the trial court, invoking authority to decide cases on any legal
ground shown by the record. See, e.g., In re Handy, 171 Vt. 336, 764 A.2d 1226 (2000). In some cases, the practice has been justified because the
parties were on notice of the issue and the Court heard "reasoned arguments
from the party against whom [it] decided the question." Harris v. Town of
Waltham, 158 Vt. 477, 479 n.1, 613 A.2d 696, 697 n.1 (1992). The practice
has also been justified when the parties were provided the opportunity for
supplemental briefing. Merrilees v. Treasurer, 159 Vt. 623, 623-24, 618 A.2d 1314, 1315-16 (1992) (mem.). In other cases, the Court has simply
decided an issue without benefit of notice and briefing or argument, and
without explaining why it has dispensed with briefing. See, e.g., Larkin
v. City of Burlington, 172 Vt. 566, 772 A.2d 553 (2001) (mem.); In re
Handy, 171 Vt. at 337, 764 A.2d at 1230.

¶ 35. The fact that the Court engages in this practice does not
ensure that it has considered all meritorious arguments on the issue
decided. The cases cited show that our Court, like others, has not yet
developed consistent standards for when briefing should be invited and when
it is unnecessary. See Sarah M. R. Cravens, Involved Appellate Judging, 88
Marq. L. Rev. 251, 257-65 (2004). Cravens recognizes that "[t]here is no
apparent agreement on a practical course of action" when the parties
arguably "miss the point" in their briefs, and she discusses the extent to
which appellate courts should recast issues sua sponte when, among other
circumstances, "the court sees a completely different framework in which to
view the case." Id. at 261. Unlike Milani and Smith, Cravens advocates
an activist approach based on the premise that the purpose is to reach "the
most correct resolution" of an issue. (FN6) Id. at 294. Even accepting
this premise, the question is whether dispensing with briefing in a
particular case will achieve this result.

¶ 36. Vigorous dissents are not uncommon when cases are decided on
unbriefed grounds, and these dissents highlight the important policies
underlying the practice of notice and briefing. See, e.g., Harris, 158 Vt.
at 484, 613 A.2d at 700 (Allen, C.J., dissenting). As Chief Justice Allen
explained in Harris, "[a] principal reason for not considering issues not
presented by the parties at trial or in their briefs is the great risk of
deciding important issues without hearing reasoned arguments on both sides
of the question, especially a novel question." Id.; see also Favreau v.
Miller, 156 Vt. 222, 233, 591 A.2d 68, 75 (1991) (Dooley, J., dissenting)
(stating that the majority should not decide an issue where "[w]e have not
had the benefit of briefing and argument on that issue").

¶ 37. In a case where the majority found a legislative act
unconstitutional without a constitutional challenge having been raised, the
dissent faulted the majority for deciding the case without argument on the
legal basis for the decision, which it noted had been subject to scholarly
criticism. In re Handy, 171 Vt. at 351-52, 764 A.2d at 1240 (Johnson, J.,
dissenting). According to the dissenting justices, the majority's decision
to strike down the statute by asserting its authority to "affirm on any
grounds" stretched the maxim beyond its breaking point. Id. at 352, 764 A.2d at 1240.

¶ 38. In this case, the majority concludes that because attorney's
fees would have been charged even if there had been no negligence,
defendant's negligence was not the proximate cause of the payment of
attorney's fees, and therefore it cannot be the proximate cause of damages
in a malpractice case seeking return of payment. This theory, which is
case-dispositive, appears for the first time in the majority decision. The
trial court's approach to the entire issue of causation was to apply the
actual innocence rule: plaintiff's guilt alone formed the basis of the
ruling on causation, and no other aspect of causation was considered. The
approach taken by the majority was not addressed by the trial court or by
the parties in their briefs or at oral argument. (FN7) The approach is not
so obvious that the parties should have foreseen it as important and
addressed it. Indeed, it is absent from most if not all of the many
decisions from other states that have addressed the applicability of the
actual innocence rule. See Part III, infra.

¶ 39. The parties had no reason to suspect that the Court would
decide the case on any grounds other than the one on which the trial court
clearly based its decision, and on which plaintiff based his appeal.
Neither party has had the opportunity to consider or present argument on
the analysis underlying the majority's ruling, nor challenge its
conclusion, based on a 1972 Louisiana case, that plaintiff cannot recover
attorney's fees paid to defendant as long as "defendant took some action
'for which plaintiff[] received some value.' " See ante, ¶ 27 (citing Ramp
v. St. Paul Fire & Marine Ins. Co., 269 So. 2d 239, 246 (La. 1972)).

¶ 40. The Court has been deprived of the benefit that comes from a
full airing of the legal issues, including analysis and arguments presented
by advocates, and dialogue that would be helpful in evaluating the wisdom
of a proposed rule of law. (FN8) As the Court has previously stated, a
"broad new doctrine of lawyer malpractice liability" should not be "based
on a record that is wholly inadequate to make this decision." Roberts v.
Chimileski, 2003 VT 10, ¶ 18, 175 Vt. 480, 820 A.2d 995.

¶ 41. At the very least, I would notify the parties that the Court
was considering alternative grounds on this portion of the case, provide an
opportunity for supplemental briefing, and schedule the case for
reargument. See Jewett, 146 Vt. at 223, 500 A.2d at 234-35. Even Cravens,
who argues that judges should not be limited to the arguments raised in the
briefs on appeal, recognizes that inviting supplemental submissions by the
parties may be warranted where "there is an omitted issue or an argument
that might be dispositive or highly influential in the decision." Cravens,
Involved Appellate Judging, supra, at 296. The majority has decided the
case based on unexamined reasoning. Such an approach, without an
explanation of why it is justified in this case, does not demonstrate
respect for the contributions counsel and parties may be able to make, or
promote confidence in the justness of the process or outcome. The proposed
basis for the decision should be presented to the parties for briefing.

II. The legal basis of the majority's decision

¶ 42. While I am reluctant to address the merits of the basis for
the majority decision given the absence of briefing and argument by the
parties, I will nonetheless set forth causes for concern about the opinion
of the majority.

¶ 43. Under ordinary negligence jurisprudence, proximate causation
is a fact question for the trier of fact. Roberts, 2003 VT 10, ¶ 15
("[P]roximate cause in lawyer malpractice actions is 'cause-in-fact.' ").
Both parties agree that the trial judge did not make a finding of fact on
this issue because he applied the actual innocence rule instead. The
majority concludes that plaintiff cannot establish proximate cause for
these fees because the attorney's fees "were charged irrespective of the
quality of defendant's representation" and therefore not proximately caused
by malpractice. Ante, ¶ 27. It is unclear whether the majority is
announcing this as a rule of law, or making its own determination of fact.

¶ 44. If it is a rule of law, it is difficult to determine what the
ruling is, and what its governing principle is. Is it a rule of law that
no remedy for the return of any fees paid is available in a malpractice
case against a criminal defense attorney as long as the lawyer "took some
action 'for which plaintiff[] received some value,' " and the client
eventually pled guilty to at least one crime? If so, how is that different
from the actual innocence rule?

¶ 45. Is it a rule of law that in such a case, a client is
precluded from recovery only if he or she is asking for return of all fees
paid? While plaintiff sought to recover the full amount he paid, the
prayer for relief in his amended complaint asked for judgment "in an amount
commensurate with his damages." The trial judge recognized that the
purpose of the trial was to determine whether "a part or all of the fees
paid" were incurred as a result of inadequate representation. In any
negligence case, the trier of fact does not grant an all-or-nothing
recovery in response to a plaintiff's request, but is required to limit
recovery to the extent of harm proved to have been caused by the
negligence. It is difficult to conclude that the majority ruling means
that a plaintiff will be barred if he asks for return of the full fee, but
not so barred if he asks for a return of less than the full amount paid.
Such a rule is not consistent with either negligence or contract law and
procedure, in which a plaintiff may assert a claim for the maximum amount
desired, but recovery is limited to the amount proved at trial.

¶ 46. Is it a rule of law that in any malpractice case brought
against any professional, a client may not sue for return of fees paid if
the fees would have been charged absent negligence? If so, this is an
extremely broad legal doctrine that deserves more attention. Who
determines whether the fees would have been charged absent negligence? In
a footnote, the majority distinguishes this case from one in which there
"may be a bona fide fee dispute in the course of criminal representation
that would give rise to a breach of contract claim that was not a disguised
malpractice claim." Ante, ¶ 27 n.5. It is unclear whether the majority
recognizes that there could ever be a bona fide fee dispute arising from
substandard attorney work in the absence of special obligations created by
contract. This is an important question, since the case moves further
toward treating all attorney malpractice cases as negligence cases and not
contract actions in the absence of specific contractual terms. See ante,
¶ 24 (plaintiff's claim was properly construed as a tort claim because
plaintiff did not allege that defendant breached any special obligations in
his employment contract with defendant, nor could he as their agreement was
oral and contained no specific or special obligations).

¶ 47. Thus, it is difficult to discern not only what the rule is,
but what the governing principle underlying that rule is, so that it may be
applied in variant factual circumstances in the future. For example,
imagine a plaintiff who is convicted of driving under the influence (DUI)
after a trial in which his privately retained counsel performed competently
prior to trial but made numerous errors at trial, or perhaps slept through
it, to use plaintiff's example. The plaintiff, with different counsel,
obtains a reversal on appeal. To avoid a retrial, he subsequently pleads
guilty to the lesser charge of negligent operation with the same fine
amount he previously paid. (FN9) Can he assert a malpractice claim for
that portion of the fees paid to the first trial attorney for incompetent
work in the trial portion of the case? It is work that would have been
charged for, whether it was competent or not. If he is barred from such a
recovery by the holding in this case, how does the rule of law differ from
the actual innocence rule? If he is not, what is the basis for the
difference?

¶ 48. In the broadest application of the majority decision, it would
insulate all professionals from malpractice suits in which clients seek a
return of fees paid where there are no special contractual obligations. In
its narrowest application, it appears indistinguishable from the actual
innocence rule. Because of the lack of clarity, it is not helpful to
either attorneys or trial judges, and carries the risk of inconsistent
interpretation.

¶ 49. Alternatively, the conclusion that "plaintiff cannot
establish proximate cause for these fees" may be read as a determination of
fact. Determination of proximate cause requires a finding by the trier of
fact except in rare circumstances. Roberts, 2003 VT 10, ¶¶ 14-15;
Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 635, 751 A.2d 293, 297 (2000) (mem.) ("Proximate cause is ordinarily an issue to be
resolved by the jury unless the proof is so clear that reasonable minds
cannot draw different conclusions or where all reasonable minds would
construe the facts and circumstances one way."). Thus, it is the
fact-finder's task to find proximate cause, especially where there are
various possible causal contributors to an event, such that "the proof and
facts do not lend themselves to . . . singular clarity." Fritzeen, 170 Vt.
at 635, 751 A.2d at 297.

¶ 50. If the Court is making a factual determination, it is not
based on a review of the evidence, as the nature of the appeal did not call
for a review of evidence presented at trial. The trial judge as
fact-finder never made such a determination based on the trial evidence
because he applied the actual innocence rule. Therefore, I would remand to
the trial court for a factual finding of whether defendant's negligence was
the proximate cause of any harm to plaintiff in relation to fees paid for
services.

III. The actual innocence rule

¶ 51. I turn last to the issue presented for appellate review: "Did
the Superior Court err by adopting an 'actual innocence' rule?" The
majority states that it chooses to leave this issue deliberately undecided.
I would hold that the rule is not applicable in this case because the
policy reasons underlying the rule have little weight in a fee case such as
this one.

¶ 52. In general, the actual innocence rule precludes a criminal
defendant from recovering money damages in a malpractice action against his
trial attorney for effects of conviction, such as time spent incarcerated,
unless he can establish his "actual innocence" in relation to the subject
matter of the legal representation. See generally 3 R. Mallen & J. Smith,
Legal Malpractice, §§ 26.13-26.17, at 912-977 (2006 ed.). Some courts view
"actual innocence" as an additional element required to sustain a criminal
malpractice action; others view a criminal defendant's guilt as relevant to
the element of proximate cause inherent in any legal malpractice
proceeding. Compare Wiley v. County of San Diego, 966 P.2d 983, 985 (Cal.
1998) (proof of "actual innocence" is required as additional element in
criminal malpractice action) with Peeler v. Hughes & Luce, 909 S.W.2d 494,
498 (Tex. 1995) (criminal defendant cannot establish proximate cause in
criminal malpractice action, as a matter of law, unless his conviction has
been overturned because it is the illegal conduct rather than the
negligence of his counsel that is the cause-in-fact of any injuries flowing
from the conviction). The line between the "actual innocence" rule and
proximate cause can be difficult to discern. Thus, in Krahn v. Kinney, 538 N.E.2d 1058, 1060-62 (Ohio 1989), the Ohio Supreme Court declined to adopt
an "actual innocence" requirement for criminal malpractice actions but
recognized that, in most cases, the failure to secure a reversal of the
underlying criminal conviction may bear upon and even destroy a plaintiff's
ability to establish proximate cause for damages. (FN10)

¶ 53. Those courts that have adopted the "actual innocence" rule
generally identify compelling public policy reasons for its use, including
prohibiting criminal defendants from profiting financially where their
underlying conduct may have been wrongful. See e.g., Wiley, 966 P.2d at
985-87 (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"). These policy considerations are most relevant
where: (1) a criminal defendant's conviction is reversed or vacated due to
the attorney's error; (2) the client subsequently pleads guilty or no
contest to the same criminal charge and receives a sentence with credit for
time served; and (3) the client then seeks money damages from the trial
attorney for the first conviction. See e.g., Brown v. Theos, 550 S.E.2d 304, 306 (S.C. 2001). In such cases, the effect of the rule is consistent
with the requirements of proof of proximate causation: the defendant has
little prospect of being able to prove causation between the negligence and
the claimed harm of imprisonment. Either the underlying criminal conduct,
or the guilty plea in which the defendant accepts responsibility for
criminal conduct, is seen as the cause of incarceration, eclipsing the
attorney's negligence as the proximate cause.

¶ 54. The policy reasons underlying the actual innocence rule lose
their force in the context of a fee dispute. They are outweighed by
competing policy considerations, such as the basic principle of
professional accountability through civil liability. The facts of this
case illustrate the disjunction between the purposes for the rule and its
effect in fee cases. Here, the trial court found that defendant was
negligent because he failed to object to a faulty jury instruction on
reasonable doubt and he failed to raise the issue on direct appeal. This
issue is fundamental to representation of a client at a criminal jury
trial. Although defendant acted negligently, the court denied plaintiff's
claim for relief because he could not establish his "actual innocence."
The court cited to Wiley, 966 P.2d at 986, indicating its approval of the
public policy reasons expressed in the decision.

¶ 55. The policy considerations cited by the trial court in support
of its decision have little relevance to plaintiff's claimed harm-loss of
money paid for substandard work. While it may be reasonable for a
fact-finder to conclude that a plaintiff who seeks money damages for
incarceration cannot establish causation unless he can show the
incarceration was wrongful, the use of the actual innocence rule in this
case is overbroad as plaintiff seeks only return of fees paid for negligent
work and not compensation for incarceration. Cf. Wiley, 966 P.2d 983
(court adopted "actual innocence" rule in case where criminal defendant
sued public defender for malpractice after his conviction was vacated and
jury awarded him $162,500 in damages for effects of conviction; appeals
court overturned award because Wiley could not establish his "actual
innocence"). Plaintiff may or may not have presented sufficient evidence
below to show a causal link between the negligence and an amount of
unjustified attorney's fees paid. The trial court should evaluate all of
the evidence, including plaintiff's guilty plea and the effect of
defendant's negligence on the fees charged, to determine if cause-in-fact
has been proved, rather than rely on a rule of thumb developed for
different factual circumstances.

¶ 56. Applying an actual innocence rule as a matter of law on these
facts deprives a client who pays value for a competent legal defense of
even the opportunity to make a showing of proof of causation. See Lynch v.
Warwick, 115 Cal. Rptr. 2d 391, 398-400 (Ct. App. 2002) (McDonald, J.,
dissenting) (asserting that policy concerns underlying actual innocence
rule are inapplicable where plaintiff claims that he incurred attorney's
fees for services that were either not performed or inadequately performed,
and stating that "[a] criminal defendant's guilt should not deprive him or
her of the right to recover money paid to his or her attorney for legal
representation that was not provided"); see also Bird, Marella, Boxer &
Wolpert v. Superior Ct., 130 Cal. Rptr. 2d 782, 786-89 (Ct. App. 2003)
(distinguishing Lynch, and holding that fee dispute between client and
former counsel does not entail policy considerations that arise from
malpractice suits that invoke actual innocence rule); Saffer, 670 A.2d at
533-35. Moreover, because the client is deemed unable to show the element
of causation, the client never has the opportunity to show negligence. The
result is a complete denial of any remedy for having paid a professional
for negligent work.

¶ 57. This is particularly true in light of the trend in Vermont,
illustrated by this case, of treating attorney malpractice cases as
sounding in negligence rather than contract, absent specific contract
terms. (FN11) See ante, ¶ 24. If the actual innocence rule precludes a
person who has paid a privately retained attorney for competent
professional services from having a negligence remedy for malpractice, and
there is no ability to pursue a breach-of-contract claim, then there is no
remedy available for malpractice at all in fee cases. The salutary effect
of promoting professional competence through civil liability is lost.

¶ 58. The Court stated in Roberts that it was "not prepared to
eliminate the causation requirement" from the tort of legal malpractice.
2003 VT 10, ¶ 16. The application of the actual innocence rule to the
facts of this case would have an opposite but equally significant effect:
it would eliminate the tort itself as applied to private criminal defense
attorneys, at least as to claims for return of fees paid to that attorney.
As long as their clients enter a plea of guilty to even one criminal act,
however minor in relation to the original charged conduct, such attorneys
are essentially immunized and their clients would not even have the
opportunity to meet the burden of proof. This effect is not consistent
with generally applicable principles of negligence law. As applied to fee
dispute cases, there is no apparent social policy that would justify it. I
would remand for the trial judge to make a factual finding on proximate
cause on the basis of the evidence presented at the trial below.

_______________________________________
Superior Judge, Specially Assigned

------------------------------------------------------------------------------
Footnotes

FN1. Plaintiff's counsel fees for his post-conviction-relief proceedings as
well as his appellate fees on his direct appeal were paid pursuant to the
Criminal Justice Act, 18 U.S.C. § 3006A, so he did not incur any legal
expenses for those actions. See United States v. Bloomer, 150 F.3d 146,
148 (2d Cir. 1998). Accordingly, plaintiff's claim here does not relate to
either his appellate or post-conviction-relief claims in federal court.

FN2. Plaintiff's claims for intentional infliction of emotional distress
were dismissed in a separate summary judgment decision on August 9, 2001.

FN3. In essence, the superior court granted summary judgment on the amended
complaint, as it had on the original complaint, making unnecessary its
determination that defendant's representation fell below the legal standard
because of failure to object to the jury instruction. Normally, we would
hold that a party's failure to challenge a summary judgment decision would
prevent a challenge to a later trial judgment which is based on the exact
same evidence and reasoning. In this case, however, we will treat
plaintiff's challenge to the trial judgment as also applicable to the
summary judgment.

FN4. The dissent contends that our affirmance of the trial court on the
basis of causation alone amounts to an improper "sua sponte" disposition of
the case on "grounds of which neither party had notice or an opportunity
for briefing or argument." Post, ¶¶ 31, 30. This contention misstates
both the relation of our disposition to that of the trial court and the
role of appellate review.

First, the assertion that the parties had no notice of the issue of
causation defies the trial court's order. The portion of the trial court's
decision from which plaintiff now appeals, titled "CAUSATION," questions in
its first sentence whether "plaintiff can prove that he wrongly incurred
fees as a result of the defendant's single malfeasance related to the jury
charge." Additionally, while the order intermixes reference to plaintiff's
guilt with causation, it concludes:

[T]here can be no breach of contract in this case unless [there
is] negligence, and there can be no negligence without proximate
cause. Ergo, despite the defendant's malfeasance with respect to
the jury charge, the defendant cannot be liable for breach of
contract because the plaintiff cannot show that the jury charge
error caused his injury.

We agree and find this conclusion dispositive, making the further
discussion of plaintiff's guilt superfluous.

Second, even if we first raised the precise issue on which we affirm,
our decision would represent a routine application of the doctrine that
this Court "may affirm a trial court's decision if the correct result is
reached, despite the fact that the court based its decision on a different
or improper rationale." Sorge v. State, 171 Vt. 171, 174 n.1, 762 A.2d 816, 818 (2000) (citing Bissonnette v. Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055 (1997) ("We agree with the trial court's conclusion, but use a
different rationale to reach it.") and Hudson v. Town of East Montpelier,
161 Vt. 168, 170, 638 A.2d 561, 563 (1993) ("[W]e need not adopt the
court's rationale in affirming its conclusion.")). Hardly a term goes by
in which we do not invoke this doctrine to some degree in some case to
avoid unnecessary reversals of trial court decisions. See, e.g., McAlister
v. Vermont Prop. & Cas. Ins. Guar. Ass'n, 2006 VT 85, ¶ 1, 17 Vt. L. Wk.
254 (lower court's interpretation of governing statute was erroneous, but
decision affirmed based on alternative interpretation). Indeed, because of
the long-standing application of this doctrine, the parties on appeal are
expected to identify and address related approaches that would reach the
same result as the trial court. In light of the superior court decision,
we see no unfairness in expecting them to address issues of causation.

Finally, while we are sensitive to the philosophical arguments of a
law review article like that cited by the dissent, we are more persuaded by
the critics of such a rigid approach. See Cravens, Involved Appellate
Judging, 88 Marq. L. Rev. 251, 253 n.4 (2004) ("Milani and Smith take a
certain plot of high ground in their process-dominant view, which is of
course defensible in many ways, but ultimately I conclude that a solution
such as theirs is in the first place unrealistic, due to a lack of
resources necessary to achieve it, and is furthermore a bad policy in that
it permits bad lawyering to result in bad law, where that eventuality may
be avoidable.").

FN5. We do not exclude the possibility that there may be a bona fide fee
dispute in the course of criminal representation that would give rise to a
breach of contract claim that was not a disguised malpractice claim. See,
e.g., Bird, Marella, Boxer & Wolpert v. Superior Ct., 130 Cal. Rptr. 2d 782
(Ct. App. 2003). This is not such a case.

FN6. Cravens calls upon judges to think carefully about what course to take
when confronted with the question, and notes that her research has shown
that the issue "has not yet attracted the kind of attention that it
merits." Id. at 297.

FN7. Any discussion of the actual innocence rule necessarily encompasses
issues of proximate causation, but not all discussions of proximate
causation in negligence cases involve the actual innocence rule. Compare
ante, ¶ 26 with discussion infra, ¶ 52.

FN8. The issue of whether a negligent attorney may retain all or a part of
fees paid is complex, as illustrated by the numerous cases from other
jurisdictions discussed in Saffer v. Willoughby, 670 A.2d 527, 533-35 (N.J.
1996) (addressing whether lawyer facing malpractice claim should be
precluded from recovering any fee that was proximately related to alleged
negligence, and holding that "[o]rdinarily, an attorney may not collect
attorney fees for services negligently performed").

FN9. A person may be motivated to plea to the lesser charge to eliminate the
risk of significant collateral effects of a DUI conviction as well as limit
expense and delay.

FN10. Other courts have similarly recognized the close relationship between
the actual innocence rule and an analysis of proximate cause. See, e.g.,
Wiley, 966 P.2d at 991 (Werdegar, J., concurring) (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"); Canaan v. Bartee, 72 P.3d 911, 920-21 (Kan. 2003)
(adopting exoneration requirement as additional element of criminal
malpractice action but stating that adoption of the rule "could be
construed simply as a recognition that a plaintiff has no cause of action
until he or she can establish the causation element of his or her claim,"
i.e., until a plaintiff has been exonerated, his or her criminal conduct
and not his or her attorney's negligence is the proximate cause of his or
her incarceration).

FN11. Plaintiff did not appeal the trial court's ruling that a legal
malpractice case, whether framed as a negligence or contract claim, sounds
in negligence absent specific contract terms. Thus, the issue was not
before the Court for decision. Cf. Lynch, 115 Cal. Rptr. 2d at 400
(McDonald, J., dissenting) (challenging majority's treatment of contract
claim against attorney as negligence claim subject to actual innocence
requirement, and stating that majority's conclusion that a claim was a
tortclaim even though only a contract remedy was sought was "bizarre and
without cited authority," and concluding that "[t]he proof of tort
causation problem posited by the majority does not exist when the claim, as
in this case, is limited to the reasonable value of services rendered").

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.