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Supreme Court Clarifies Legal Malpractice Standards in Criminal Cases

In July 2016, the Washington Supreme Court decided Piris v. Kitching, 186 Wn. App. 265, 345 P.3d 13 (2015). That case involved an action for legal malpractice against a criminal defense attorney. The underlying defendant had earlier pleaded guilty to two counts of first degree rape of a child in 1998. He was sentenced, but on appeal his offender score was found to have been improperly calculated. Piris was sentenced with an offender score of seven, which carried a range of sentences from 159 to 211 months rather than offender score six, which supports ranges from 146 to 194 months. Therefore, even though Piris was sentenced at the low end of the sentencing range for his offenses, he argued he should have been sentenced based upon the lower range. The Court of Appeals, Division I agreed, vacated his sentence, and remanded in 2000. But a resentencing never occurred.
In 2012, following the completion of his 159 month sentence, Piris allegedly violated his supervised release terms. During the hearing, Judge Timothy Bradshaw discovered Piris had not been resentenced, so at that time he resentenced Piris to 146 months.
In March 2013, Piris filed a legal malpractice claim against his former attorneys, alleging he was incarcerated 13 months longer than his sentence allowed based on attorney negligence. The attorney defendants moved for summary judgment under the “actual innocence” standard set out in Ang v. Martin, 154 Wn.2d 477, 114 P.3d 637 (2005).

To establish a claim for legal malpractice in Washington, a plaintiff must prove: (1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney’s breach of the duty and the damage incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992). In criminal cases, the plaintiff must also have obtained postconviction relief and must prove actual innocence of the underlying criminal charge by a preponderance of the evidence.

The “actual innocence” requirement was developed in Ang v. Martin. In Ang, the Court stated five public policy justifications mandating the actual innocence requirement: (1) prohibiting criminals from benefitting from their own bad act, (2) maintaining respect for the criminal justice system, (3) removing the harmful, chilling effect on the defense bar, (4) preventing suits from criminals who may be guilty but could have gotten a better deal, and (5) preventing a flood of nuisance litigation. Ang, 154 Wn.2d at 485. The Court stated, “[u]nless 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.” Id.

In this matter, Piris argued the Court should apply an exception to the “actual innocence” requirement found in Powell v. Associated Counsel for the Accused, 131 Wn. App. 810, 129 P.3d 831 (2006). In Powell, defendant Clint Powell pleaded guilty to a gross misdemeanor, which carried a maximum sentence of 12 months. However, the trial court sentenced Powell for a class C felony and to 38.25 months of confinement. Once Powell discovered the error, he filed a personal restraint petition, which was granted, and he was resentenced. Powell served over 20 months in prison by the time he was released.

Powell sued his criminal defense attorney for legal malpractice for overly lengthy sentence he served. Finding Powell served more time than the trial court was authorized to impose, the Court stated, “Powell’s situation is closer to that of an innocent person wrongfully convicted than of a guilty person attempting to take advantage of his own wrongdoing. Powell, 125 Wn. App. At 778. The Court of Appeals concluded the public policy justification articulated in Ang did not apply. As a result, the court adopted a limited exception to the “actual innocence” standard where the trial court imposes a sentence they had no authority to order. Powell, 131 Wn. App. At 815.
The Court affirmed summary judgment dismissal of the two attorney defendants. In doing so, the court noted the Court of Appeals’ statement that the actual sentence served by Piris was within both the higher and lower sentencing ranges. Because the term of confinement was within the broad authority of the trial court, the Supreme Court found the Powell exception to be inapplicable.

ABOUT THE AUTHOR: Kyle Jones is an associate attorney in Tyson & Mendes’ Seattle office. Mr. Jones specializes in general liability, employment, and construction litigation. Contact Kyle at 206.420.4267 or kjones@tysonmendes.com.