Interesting State Supreme Court decision.


June 30, 2005, 10:52 PM
In criminal malpractice cases, plaintiffs must prove innocence
By Staff
Jun 24, 2005 - 08:36:35 am PDT
OLYMPIA -- The state Supreme Court ruled Thursday that when clients sue their criminal defense lawyers for malpractice, they must prove they were actually innocent of the underlying charges against them.

But in a sharply divided 5-4 decision, the minority argued that the high court was creating a special protection for criminal defense lawyers.

"This court should protect the public from lawyers' misdeeds, not the other way around," wrote Justice Tom Chambers.

The case stems from the 1996 indictment of psychiatrist Jessy Ang and his wife Editha, who were accused of taking part in a conspiracy that allegedly defrauded state and federal agencies. Ang was accused of providing about 200 patients with false diagnoses of mental illnesses to qualify them for welfare and Social Security benefits. The Angs, of Tacoma, jointly owned Evergreen Medical Panel, Inc., a company that provided the Washington State Department of Labor and Industries with independent medical examinations of injured workers.

The Angs hired Richard Hansen and Michael G. Martin as their lawyers. After a series of plea negotiations, the lawyers eventually encouraged the Angs to accept a plea midway through their Superior Court trial. The Angs initially agreed to plead guilty to two of the 18 counts, but after consulting with a third lawyer, fired Hansen and Martin, and withdrew their plea agreement.

The Angs were ultimately acquitted on all 18 counts.

They sued Hansen and Martin in Pierce County Superior Court in May 2000, claiming malpractice. The trial court instructed the jury that the Angs had to prove they were innocent of the underlying criminal charges. On Jan. 11, 2002, the jury found that they had not done so.

The Angs appealed, claiming that the trial court was wrong to require them to prove their actual innocence of the underlying criminal charges, and that the court did not properly instruct the jury on the definitions of those charges. The Court of Appeals affirmed the trial court's ruling, and on Thursday, the Supreme Court majority agreed with the appellate court.

The majority opinion, by Justice Susan Owens, said the Angs' acquittal only proved legal innocence, not "actual" innocence.

"Unless criminal malpractice plaintiffs can prove by a preponderance of the evidence their actual innocence of the charges, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm," Owens wrote for the court.

In conclusion, the court wrote: "We find no persuasive reasons for this court to follow the minority position and shift the burden to the defendant attorneys to prove that their former clients were actually guilty of the charged crimes."

But Justice Richard B. Sanders argued in his dissent that the malpractice standard for criminal cases should be the same as civil.

"There is no reason to invite malpractice in criminal cases by heightening the plaintiff's burden to prove postconviction relief and actual innocence," he wrote. "In every situation a client should rightfully expect competent legal representation.

Jessy Ang, who said he lost $325,000 in lawyer fees to Martin and Hansen, said he planned to file a motion for reconsideration.

"It's a great shock," he said Thursday, when reached at his Tacoma practice. "It sets a precedent that if they don't protect their clients they're not held accountable."

"We're pleased. We think it's the right result," said Christopher Howard, Martin's lawyer. "If you allow people to second-guess the results on a plea bargain because they could do better later on, you can always have people saying I can do better, I want to sue my lawyer. You would be opening up a floodgate to litigation for plea bargaining results."

A message left with Hansen was not immediately returned Thursday.

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July 1, 2005, 08:46 AM
Incredibly state-specific, so don't anyone get worked up. :)

I looked at it:

Ang v. Martin, 2005 Wash. LEXIS 544 (Wash., Jun. 23, 2005)

The clients argued that the trial court erred in requiring them to prove, in their malpractice suit against former defense counsel, their actual innocence of the underlying criminal charges. The instant court held that the clients were properly required to prove by a preponderance of the evidence that they were actually innocent of the underlying criminal charges. By successfully withdrawing their guilty pleas and receiving an acquittal on all charges, the clients received the equivalent of postconviction relief, but contrary to their contention, they did not satisfy the innocence requirement. The clients mistakenly claimed that they were simply required to prove legal innocence, not actual innocence. Proving actual innocence, not simply legal innocence, was essential to proving proximate causation. Unless the clients could prove by a preponderance of the evidence their actual innocence of the charges, their own bad acts, not the alleged negligence of defense counsel, was to be regarded as the cause in fact of their harm. The clients, rather than defense counsel, were in a far better position to bear the burden of establishing innocence. The WA S. Ct. affirmed the WA Ct. App.

July 1, 2005, 09:01 AM
...but something has gone terribly wrong when ANY court decides someone must prove their innocence.

July 1, 2005, 09:43 AM
To establish the proximate causation of malpractice!

Methinks you don't get what was going on. :scrutiny:

July 1, 2005, 09:57 AM
I believe that there are other states that use this standard also. It isnt that different from the US constitutional standard nyway. Practically they need to show that they were innocent. The standard is that they need to show that "but for the deficiancy of the attorney the result of the proceeding would have been different". From my understanding it basically means showing innocence.

July 1, 2005, 10:00 AM
No - i do get what's going on.

Question: Why would the client's guilt or innocence make a difference in terms of legal malpracitce? Does a person's illness, or lack thereof, make a difference in terms of medical malpracitce?

I will admit I may not understand the underlying legal issue - but i do understand the concept. I ask the above question out of genuine curiosity, nothing more.

Henry Bowman
July 1, 2005, 10:16 AM
Does a person's illness, or lack thereof, make a difference in terms of medical malpracitce? It certainly does. You must show proximate cause. That is, the negligent failure of the professionals' (doctor or attorney) duty to perform at the appropriate level of care was what caused the injury.

July 1, 2005, 10:20 AM
The problem is medical malpractice and legal malpractice are different. For instance, medically, you either have a disease or you don't. If the doctor misdiagnoses, then it's his fault.
But legally, regardless of whether you're actually innocent, the jury can still find you guilty if your defense doesn't do a good job or if the prosecution does a very good job. The problem is separating the cause of a conviction/bad plea bargain/etc., whether the defense failed to do a sufficient job or if the prosecution was just that much better.
In this case, the couple was suing their previous attorneys for malpractice because the attorneys didn't get them as good a plea bargain as they wanted. Now is that because the attorneys didn't do their job right, or because the prosecution and evidence available more convincing? In this case, the couple had to show they were innocent in order to sue for malpractice. Basically, if they were guilty of the crime they could have been convicted on the basis of evidence and the prosecution's arguments and not the defense's mistakes. But if they were innocent and got convicted, then the defense may very well have screwed up.
The way I see it, the couple has to prove the attorneys screwed up, in order to sue for malpractice.

July 1, 2005, 10:26 AM

Here's a realistic example of how this sort of legal logic fails the People:

Let's say one of us, being an otherwise lawful posessor of handguns, is driving from PA to Vermont, and gets pulled over with a handgun in the trunk in full accordance with Federal peacable travel.

Being smart, we don't give consent to search, but the cops bust open the trunk anyway, find the handgun, and charge us with violation of a NY state law, of which we're technically guilty.

After all, there's us and our handgun in NY state, and NY papers on it don't exist.

Our theoretical lawyer, being incompetent fails to raise the issue of USC 19.whatever, and furthermore fails to raise the 4th amendment issue of unlawful search.

Because the evidence isn't thrown out, we get convicted.

Subsequently, we discover our lawyer's incompetence, and seek to sue for malpractice.

It would seem that this logic would hold that our decision to travel with a handgun was a more proximate cause of our conviction than our attorney's incompetence in asserting our rights.

Not a good thing, IMO.

July 1, 2005, 10:42 AM
I agree with HonorsDaddy. Guilt or innocence isn't the issue -- adequate representation is the issue. Our legal system guarantees us the right to legal representation, and I think it is reasonable to go along with the presumption that this means "adequate" or "competant" legal representation. It does NOT equate to a guarantee that your legal representative MUST get you acquitted.

I don't see the defendant's guilt or innocence as being important to the case at all. The issue is and should be whether the attorney(s) acted reasonably. Regardless of whether or not another attorney got them acquitted, if the facts of the case suggested that a plea bargain was a prudent course of action and that's what the attorneys recommended, what another attorney later accomplished isn't of any consequence.

The prevailing standard of care in professional malpractice suits (legal, medical, and engineering) is what another prudent professional in the same geographic area would do under the same circumstances. So that's the standard that should be applied here. Whether or not Ang was innocent or could prove conclusively that he was innocent, or even if he was as guilty as sin, doesn't matter. If a couple or three other defense attorneys in the same city are willing to testify that they would have recommended the same plea bargain, that should be the end of the case.

July 1, 2005, 10:50 AM
To revisit the medical malpractice analogy, if a doctor makes the wrong diagnoses and says your right leg needs to be amputated, and then he takes the left one, the fact that neither leg needed to be amputated in the first place isnt an issue. At issue is the fact that he wasnt paying attention when he put the saw to you.

Here i fail to see the guilt or innocence of the client making any difference at all. Of course the fact that this question even comes up ignores the fact that our justice system ostnesibly presupposes innocence, and if one is innocent until proven guilty, why should one have to prove one's innocence to claim malpractice?

July 1, 2005, 11:09 AM
Geek makes the key point:

You may be guilty of a crime but still should be acquitted of it.

To subsequently be forced to prove the impossible in order to sue your incompetent lawyer is wrong.


July 1, 2005, 06:58 PM
Folks, I think you're misunderstanding where this one came from.

Nationally, about 2% of Americans are in the criminal justice system as convicts, parolees or subject to probation. Yet, this 2% of our people is responsible for more than 25% of all Federal lawsuits, and who knows what percentage of State lawsuits. They're sitting around in prison with nothing but time on their hands, facing long sentences, and with a Supreme Court-mandated law library and inmate "lawyers" available. So, they're filing on any pretext they can think of to get their sentences reduced or even quashed.

One of their favorite avenues of approach is to sue their lawyers for incompetence, negligence, and failing to look both ways before crossing the street, because they know that if their lawyer has any sort of judgement of this type against him, they can apply for a new trial and/or a reduced sentence. It's one of the most common lawsuits from inmates. I would imagine that this limitation on such lawsuits is to make it harder for convicted criminals to attack their legal representatives in the hope of getting a "back-door" reduction of sentence, or something like that.

Makes sense to me... if you're guilty, you have no business suing your lawyer. If you're not guilty, you have grounds for complaint. As for the example given, where illegal searches were a factor in your conviction, there's nothing stopping you appealing this aspect: but you still don't need to be suing your lawyer, which is incidental to the process.

July 1, 2005, 07:26 PM

In your example, though, you fail to consider the fact that the circumstances of the case mean that you are, in fact, innocent. FOPA allows such travel, and specifically preempts New York law; if NY's law is pre-empted, it doesn't apply, and therefore you can't be guilty of violating it. Ergo, you are actually innocent of that charge, by reason of preemption, and thus have a case for malpractice.

I think, in your case, you could make the case anyway, given the egregious errors of counsel (failing to bring a 4th Amendment challenge, and forgetting about the federal preemption? C'mon, I know both of those, and I'm not even in law school, let alone a lawyer). I would imagine that this ruling could be limited by gross negligence; in fact, you could probably get the lawyer disbarred for his failures, and that would almost certainly get you a new trial (I'd hope).

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