Bailey v. Tucker, 533 Pa. 237 (1993)
PA Underlying Action-Criminal Defense
Student Contributor: Candice L. Deaner
Facts: Plaintiff was convicted of first degree murder and sentenced to life imprisonment. He was represented at trial by defendant attorney. Subsequent to the guilty verdict, plaintiff alleged that his criminal defense lawyer had been ineffective in failing to investigate and adequately pursue an intoxication defense on his behalf. Finding some merit to this claim, the court revisited his case and ultimately found him guilty of a much lesser offense. Having already served 9 years on the previous conviction, plaintiff was released. His subsequent suit against defendant attorney alleged both negligence and breach of contract.
Issue: What are the elements of a legal malpractice case arising from an allegedly botched defense in an underlying criminal prosecution?
Ruling: The court decided to recognize criminal malpractice actions subject to the following :1) The employment of the attorney; 2) Reckless or wanton disregard of the defendant’s interest by the attorney; 3) The plaintiff’s innocence in the underlying case if not for the attorney’s malpractice; 4) Damages suffered by the criminal defendant/plaintiff; and, 5) Plaintiff’s full pursuit of available post-trial remedies. The standard was set because criminal defendants are afforded several opportunities to insure that injustice has not been committed during their prosecution. The Court noted:
1) Defense counsel should not use a criminal defendant’s access to the appellate courts as a shield to liability. Even though criminal defendants may appeal a conviction in the ordinary course of a prosecution, such a remedy does not address the “time and suffering spent under the burden of an unwarranted conviction.” Therefore some cases may award damages.
2) Imposing the same burden of proof on criminal plaintiffs as that required of civil plaintiffs may have a chilling effect on defendant representation. The court worried that availability of actions by defendants against their former attorneys would provide a powerful disincentive among practitioners to take on such cases.
Lesson: Criminal defendants face greater burdens in proving malpractice because courts have identified concerns regarding the extension of this cause of action to convicted criminals. The court felt that too broad an application would effectively chill the criminal defense bar and award money to wrongdoers. Rather than eliminate the right to sue one’s allegedly negligent criminal defense lawyer altogether, Pennsylvania courts will instead impose greater burdens on criminal plaintiffs to protect the interests of both attorneys and potential clients.