Tuesday, July 3, 2001
Guilty Plea Bars Legal Malpractice Suit Unless Set Aside—S.C.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A convicted defendant cannot sue his or her lawyer for malpractice unless the conviction is reversed or set aside, and this is true whether the conviction results from a trial or plea, the California Supreme Court ruled yesterday.
In a unanimous decision, the high court said a Fourth District Court of Appeal panel was wrong when it said that a defendant who had pled guilty could sue his former attorney without seeking relief from the conviction.
“[W]e align ourselves with the numerous jurisdictions that have, on similar grounds, required appellate or other postconviction relief as a predicate to recovery in a criminal malpractice action,” Chief Justice Ronald M. George wrote.
But the justices agreed with the lower panel that the case should go back to the trial court, opening up the possibility that defendant Nicholas Coscia could challenge his conviction and then amend his malpractice complaint. Coscia, however, has completed probation.
Coscia, a San Diego securities lawyer who once worked for the Securities and Exchange Commission, sued the law firm of McKenna & Cuneo, claiming he pled guilty to a felony because of bad advice.
Coscia, whose best-known client was convicted Ponzi scheme operator J. David Dominelli, was charged in federal court in Las Vegas in 1993 with manipulating the stock of OMNI USA. He hired lawyer Juanita Brooks of McKenna & Cuneo’s San Diego office to defend him.
He pled guilty to one felony count of conspiracy to violate federal securities laws and was sentenced in 1996 to two years probation and fined $5,000. But he later said Brooks refused to convey to prosecutors his offer to plead guilty to a misdemeanor, instead of a felony, in exchange for information on other fraudulent securities activities.
Coscia said Brooks told him the offer wouldn’t do him any good, but he said he found out later, after a conversation with an assistant U.S. attorney, that deals such as the one he wanted to offer were common.
Contending Brooks’ defense was negligent, he sued her and her firm—a year and two days after he was sentenced, and about three years after pleading guilty to conspiracy.
A San Diego Superior Court judge sustained a demurrer, agreeing that the suit was untimely and that the complaint was deficient since it failed to allege actual innocence. Coscia tried to amend the pleading, but the judge said the guilty plea estopped him from asserting innocence at all.
Yesterday’s case resolved an issue left undecided by Wiley v. County of San Diego (1998) 19 Cal.4th 532, which held that a former defendant must prove actual innocence in order to prevail in a malpractice claim against the lawyer who defended the case.
While the specific issue raised by Coscia’s appeal wasn’t resolved in Wiley, George opined, the same principles govern both cases. Requiring that the defendant prevail in the courts below, and prove actual innocence as an element of the malpractice suit, prevents inconsistent verdicts, prevents guilty defendants from shifting responsibility for their crimes onto counsel, and promotes judicial economy, the chief justice said.
This reasoning applies, George added, “even when ordinary collateral estoppel principles otherwise are not controlling, for example because a conviction was based upon a plea of guilty that would not be conclusive in a subsequent civil action involving the same issues.
This was directly contrary to the holding of the Fourth District panel, which relied on a breach-of-insurance-contract case in holding that Coscia’s guilty plea did not estop him from suing for malpractice, while a guilty verdict after trial would have.
George went on to reject the Court of Appeal’s reasoning that requiring appellate or post-conviction relief as a prerequisite to a malpractice suit was unfair, since the client has only a year from the time he should have discovered the malpractice in which to bring suit—while it usually takes far longer than that to get an appeal decided or a habeas corpus writ granted.
Trial courts, George said, can avoid the problem by taking a “two-track” approach to such cases, meaning that the defendant may sue as soon as he or she realizes there’s a claim, but the suit would be stayed while appellate or postconviction relief is being sought.
The case is Coscia v. McKenna & Cuneo, 01 S.O.S. 3144.
Copyright 2001, Metropolitan News Company