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Earll Pott Appointed to Adjunct Faculty at the California Western School of Law Starting this fall, Earll Pott will join five other adjunct professors in teaching Cal Western's innovative STEPPS program (Skills Training for Ethical and Preventive Practice and career Satisfaction). Now in its fourth year, STEPPS seeks to simulate a small law firm environment for students to train them in professional responsibility, legal research and writing, case planning, and a variety of other lawyering skills. Earll expects to draw on his rich background in criminal and legal malpractice defense as well as the experience he gained in supervising young lawyers at the San Diego County Public Defender's Office. For the Second Year in a Row, Half of the Practicing Attorneys at Coughlan, Semmer & Lipman Llp Have Been Featured in This Year's San Diego Super Lawyers® Publication Once again, four partners at the firm made the list of San Diego Super Lawyers: Jerry Coughlan, Robert Semmer, Michael Lipman and Earll Pott, in four different substantive areas: civil litigation; business litigation; professional liability defense; and white collar criminal defense. Mr. Coughlan was also named as one of the top 50 lawyers in San Diego. [view article] Cathy Fitch Publishes Article in Daily Journal Identifying Key Limitations Issue in Malicious Prosecution Cases |
Earll Pott published in the April issue of San Diego Criminal Defense Bar Association on the practice of criminal law and the liability of defense attorneys. The Practice of Criminal Law: Can I Be Sued? Overworked, subject to unrelenting trial stress, and often derided by politicians and the general public, criminal defense attorneys do enjoy one important career advantage over most other private practitioners - they are extremely well protected from malpractice lawsuits. That's because, as a matter of law in California, a plaintiff alleging attorney malpractice against his former criminal defense attorney cannot prevail unless he proves, by a preponderance of the evidence, that he was factually innocent of the charges filed in his criminal case. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 67.) This burden is in addition to the already difficult task of meeting the elements of attorney malpractice, i.e. (1) the attorney's duty to use the skill, prudence and diligence commonly exercised by attorneys in the field; (2) breach of that duty; (3) proximate cause; (4) and actual loss or injury resulting from the attorney's negligence. Controversial at the time it was adopted, the requirement of proof of actual innocence is now well accepted and far and away the majority rule in the United States. See, e.g., Canaan v. Bartee (2003) 276 Kan. 116, 72 P.3d 911 (listing majority and minority cases). It is founded on an explicit public policy that bars a criminal from shifting the consequences of his guilt and, in a derivative fashion, profiting from his own wrongdoing. It is also based on the availability of alternative avenues for relief in criminal cases (e.g. reversals based on ineffective assistance), the need to promote consistent judgments in criminal and civil adjudications of the same facts, and perceived difficulties in explaining causation and differing burdens of proof to civil juries if the rule were not in place. Wiley, supra, 19 Cal.4th at pp. 538-543. Finally, since the rule reduces the risk of malpractice claims, it encourages the representation of criminal defendants who, as defense attorneys know too well, are often indigent or of limited means. Tibor v. Superior Court (1997) 52 Cal.App.4th 1359, 1372. Although theoretically more likely to find a lawyer to take his case, the downside risk to a criminal defendant is manifest: He can be subject to all manner of harm from the negligence or misconduct of his criminal defense attorney without monetary recompense. In other words, the attorney who fails to recognize a winning suppression motion, fails to seek an instruction on a lesser included offense, or fails to present mitigating evidence at sentencing can be responsible for years of incarceration, but will be shielded from liability if the plaintiff cannot show actual innocence. As a prerequisite for showing actual innocence, the plaintiff must first show that he obtained post-conviction exoneration. Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1198, 1205. The California Supreme Court defines post-conviction relief as "a final disposition of the underlying criminal case--for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief...." Id. at p. 1205. Significantly, "[a] plaintiff may satisfy the post-conviction exoneration requirement even if the relief obtained is not based on the plaintiff's innocence or his lawyer's incompetence." Sangha v. La Barbera (2006) 146 Cal.App.4th 79, 86. For example, a defendant may obtain relief based on prosecutorial misconduct or a police department's failure to preserve forensic evidence for retesting, neither of which speak directly to guilt or innocence. Therefore, post conviction relief, though required, is not sufficient. A plaintiff who demonstrates post-conviction relief must still demonstrate to a civil jury by a preponderance of the evidence that he was indeed innocent. Ibid. In practice, most plaintiffs never make it to a jury determination of actual innocence because the hurdle of post-conviction relief is so high. As anyone who has sought relief on appeal or on a writ of habeas corpus knows, it is extremely difficult to overturn a conviction. Moreover, to claim post-conviction relief sufficient to carry the burden of proof of actual innocence, it is not enough that relief was granted as to the most serious charge. For example, where a defense attorney counseled his client to plead guilty to a felony vandalism when the property damage was less than $400, and the erroneous advice caused the client to lose his broker's license when a misdemeanor plea would not have, the court found the evidence of post-conviction relief insufficient, despite a Court of Appeal decision overturning the felony plea. Sangha v.La Barbera, supra, 146 Cal.App.4th at pp. 84-88. Similarly, in Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, the client was convicted of a felony battery on a custodial officer (Cal. Penal Code § 243.1) and two misdemeanors, driving under the influence and leaving the scene of an accident. The convictions were overturned on a writ of habeas corpus based on the lawyer's incompetence and the client thereafter entered no contest pleas to the misdemeanors. Despite the plaintiff's claim that the gravamen of the malpractice claim was the incompetence that led to her felony conviction, 180 day jail sentence, multiple beatings endured in custody, loss of employment, and denial of her naturalization petition, the court found she had not satisfied the requirement of post trial exoneration and affirmed a dismissal on demurrer. Pleas to the "transactionally related" misdemeanors, the court reasoned broadly, fatally undermined her claim. Id. at pp. 46-48. Apart from the need to win complete exoneration, the potential malpractice plaintiff who pursues post-trial relief must also keep his eye on the statute of limitations. With certain exceptions, a civil action against an attorney for a wrongful act or omission must be brought within four years from the date of the wrongful act or omission or one year after the plaintiff discovered or should have discovered the facts constituting the wrongful act or omission, whichever occurs first. Cal. Civ. Pro. Code § 340.6(a). Unless a wrongful act or omission is accompanied by "actual injury," the statute is tolled until such injury occurs. Ibid. In a criminal case, however, the client suffers actual injury, at the latest, when he or she is sentenced and incarcerated. Fantazia v. County of Stanislaus (1996) 41 Cal.App.4th 1444, 1451. Thus, once the client has lost his liberty, assuming no other grounds for tolling, the statute of limitations clock begins ticking.[1] The newly imprisoned client, if he has knowledge of the facts that point to a criminal defense attorney's negligence, has just a year to file a malpractice suit. The California Supreme Court has recognized that it is generally impossible to secure post-conviction relief in that short a period of time, so it has endorsed a procedure whereby the plaintiff files suit, but then requests a stay of the civil action until such time as the request for post-conviction relief is granted or denied. Coscia v. McKenna & Cuneo (2001), supra, 25 Cal.4th at pp. 1207, 1210-1211. Of course, interesting an attorney in representing a client with a potential malpractice case before exoneration is a challenge that was not considered by the Court. Thus, the potential plaintiff, though focused on the immediate effort of an appeal, must recognize the cause of action for malpractice, apprehend the danger of the short statute of limitations, and, once filed, seek the appropriate stay - often entirely on his own. The double whammy burden of obtaining post conviction relief and proving actual innocence, however, does not immunize the criminal defense attorney from all types of civil actions filed by disgruntled clients. Contract actions challenging a retainer agreement are the most prominent example of suits that can go forward regardless of a client's guilt or innocence. Thus, a defendant has a right "to be billed in accordance with the terms of the retainer agreement and the right not to be subjected to unconscionable, fraudulent or otherwise unlawful billing practices," regardless of innocence. Bird, Marella Boxer & Wolpert v. Superior Court (Riener) (2003) 106 Cal.App.4th 419, 427. See also Brookes v. Shemaria (2006) 144 Cal.App.4th 434, 441 (preserving client right to sue for return of unused retainer regardless of actual innocence). However, a claim that an attorney did not live up to his side of the contract by not filing appropriate motions will not be allowed to proceed without proof of actual innocence, since the gravamen of the case is malpractice, not a pure fee dispute. Lynch v. Warwick (2002) 95 Cal.App.4th 267. Though the odds of liability are remote, it is worth remembering that a malpractice plaintiff who can meet the burden of proving actual innocence, often stands to collect an enormous sum of damages. Thus, in Hicks v. Nunnery (2002) 252 Wis.2d 721, the plaintiff sued his former defense counsel for failure to obtain DNA testing that would have exonerated him of the rape charge that resulted in his serving over four years in prison on a nineteen year sentence. The defense attorney, who forthrightly filed a mea culpa affidavit in support of the client's appeal, was nevertheless hit with a $2.6 million judgment. The attorney was reportedly uninsured. For most criminal defense practitioners, this case and others like it should be sufficient to convince them to hold on to their professional liability policies, no matter how sturdy the protection offered by the requirement of actual innocence. Earll Pott is an attorney with Coughlan Semmer & Lipman, LLP where he practices criminal defense and the defense of a variety of civil claims, including legal malpractice.
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