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Stephens v. Denison11/5/2004
ilar circumstances; and 3) that the attorney's negligence was the proximate cause of damage to the client." Marrs v. Kelly, Ky., 95 S.W.3d 856, 860 (2003), quoting Stephens, 64 S.W.3d at 298-99. Because there is no question that there was an employment relationship with Denison and Stephens, the issue is whether expert witness testimony was necessary for Stephens to prove that Denison neglected his duty to exercise ordinary care and that Denison's negligence was the proximate cause of damage to Stephens.
The question of whether expert testimony is always required in legal malpractice actions is apparently one of first impression in Kentucky. Kentucky has adopted an exception that allows medical malpractice claims to proceed without expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it. See Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965); Harmon v. Rust, Ky., 420 S.W.2d 563, 564 (1967); Maggard v. McKelvey, Ky. App., 627 S.W.2d 44, 49 (1981). A similar result has been reached in dental malpractice actions. See Butts v. Watts, Ky., 290 S.W.2d 777, 779 (1956).
Because Kentucky courts allow medical and dental malpractice claims to proceed absent expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it, we see no reason why such a rule should not be extended to legal malpractice claims. Stephens's allegation that Denison failed to communicate a plea offer to him until such time as it could no longer be accepted would fall within the aforementioned exception. Thus, his failure to identify an expert witness is not, by itself, fatal to his claim. Therefore, we conclude that the circuit court erred in granting summary judgment in favor of Denison based solely on Stephens's failure to identify an expert witness.
Although we have concluded that the circuit court erred in granting Denison's summary judgment motion based on Stephens's failure to have an expert witness to support his claim, we nevertheless believe the court, for a different reason, correctly granted the motion. Although the court did not address Denison's argument that Stephens was required to obtain post-conviction relief as a prerequisite to bringing his malpractice claim, we believe the argument has merit. In Ray v. Stone, Ky. App., 952 S.W.2d 220 (1997), this court addressed the issue in a case involving facts similar to those in this case. In the Ray case, Ray pled guilty to the charge of trafficking in a controlled substance (cocaine) and was sentenced to nine years in prison pursuant to a plea agreement with the Commonwealth. DUI and PFO I charges were dismissed under that agreement.
Ray's post-conviction motions to have the judgment vacated or set aside were unsuccessful.
Ray alleged that the attorney representing him negligently performed his professional duties and responsibilities, and Ray filed a civil action in the circuit court alleging legal malpractice. The attorney moved the court to grant him summary judgment. The circuit court granted the motion, and Ray appealed.
On appeal this court affirmed the circuit court's summary judgment and stated that " here being no fact question concerning his innocence, public policy compels us to conclude that any acts or omissions by attorney Stone are not the cause of Ray's alleged damages. Instead, Ray must accept as the sole, proximate, and producing cause of the indictment, conviction, and resultant incarceration, his own unlawful conduct." Id. at 224. This court further stated that it supported the public policy that prohibits financial gain resulting directly or indirectly from
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