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Stephens v. Denison11/5/2004
criminal acts. Id.
Quoting In re Laspy's Estate, 409 S.W.2d 725, 728 (Mo. App. 1966), this court reasoned that allowing Ray to maintain a malpractice action against his attorney would allow him "to profit . . . or take advantage of his own wrong, or to found a claim upon his iniquity or to acquire property by his own crime." 952 S.W.2d at 224. This court further explained that " efore it can be demonstrated that the attorney's actions were the proximate cause of his damages, the plaintiff must establish his innocence." Id. Finally, based on Ray's guilty plea and the lack of a fact issue concerning his innocence, the court reasoned that the attorney was entitled to summary judgment. Id. at 225.
A case with facts similar to those in this case was before the Ohio Supreme Court in Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989). In that case Krahn's attorney did not communicate a plea offer by the prosecutor to dismiss Krahn's charges in return for her willingness to testify against another of her attorney's clients. As a result, Krahn later pled guilty to a misdemeanor offense pursuant to her attorney's advice and without the benefit of knowing the plea offer. Krahn then retained another attorney and filed a civil action against her first attorney for legal malpractice arising from his representation of her in the criminal case.
The case eventually came before the Ohio Supreme Court, which affirmed a lower appellate court's reversal of a summary judgment in favor of the attorney. Quoting from the lower appellate court, the Ohio Supreme Court reasoned that Krahn's injury "is not a bungled opportunity for vindication, but a lost opportunity to minimize her criminal record." Id. at 1061. The court reasoned that the situation was similar to that in civil cases where the attorney fails to disclose a settlement offer. Id. The court concluded that "a plaintiff need not allege a reversal of his or her conviction in order to state a cause of action for legal malpractice arising from representation in a criminal proceeding." Id.
Despite the holding of the Ohio Supreme Court in the Krahn case, a majority of states that have addressed the issue have concluded that post-conviction relief is a prerequisite to maintaining a legal malpractice action arising out of criminal representation. See Canaan v. Bartee, 72 P.3d 911, 914 (Kan. 2003). In the Canaan case, the Kansas Supreme Court stated that many courts have cited equitable principles, such as a concern that a defendant should not be allowed to profit from his or her illegal conduct and that it is improper to shift the burden of responsibility for the crime away from the criminal and to his attorney, as a justification for the exoneration rule. Id. at 916. Further, the court held that "without exoneration, it cannot be said that the attorney's actions were the proximate cause of the guilty criminal's injury ." Id. The court concluded that unless the defendant obtained relief from his conviction or sentence, then his own actions are presumed to be the proximate cause of his injury. Id.
We agree with the principles discussed by the Kansas Supreme Court in the Canaan case and followed by a panel of this court in the Ray case. Therefore, because Stephens has not obtained exoneration from his conviction and sentence through post-conviction relief, he may not maintain a cause of action against Denison for legal malpractice. In short, the circuit court properly awarded summary judgment in Denison's favor because there was no genuine issue of material fact in this regard. See Kentucky Rules of Civil Procedure (CR) 56.03.
The judgment of the Jefferson Circuit Court is affirmed.
MINTON, JUDGE, CONCURS.
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