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In New Hampshire Civil Malpractice Action Requires Proof

THE SUPREME COURT OF NEW HAMPSHIRE

DENNIS MAHONEY
v.
SHAHEEN, CAPPIELLO, STEIN & GORDON, P.A.

In this State, a civil malpractice action requires proof of (1) an attorney-client relationship, which triggers a duty on the attorney to exercise reasonable professional care, skill, and knowledge in providing legal services to that client, (2) a breach of that duty, and (3) resultant harm legally caused by the breach. Witte v. Desmarais, 136 N.H. 178, 182, 614 A.2d 116, 117 (1992); see McLaughlin v. Sullivan, 123 N.H. 335, 340, 461 A.2d 123, 126 (1983). Public policy, however, dictates an augmented standard in criminal malpractice actions. While such an action requires all the proof essential to a civil malpractice claim, a criminal malpractice action will fail if the claimant does not allege and prove, by a preponderance of the evidence, actual innocence. It is not sufficient for a claimant to allege and prove that if counsel had acted differently, legal guilt would not have been established. As a matter of law, the gateway to damages will remain closed unless a claimant can establish that he or she is, in fact, innocent of the conduct underlying the criminal charge. See Glenn v. Aiken, 569 N.E.2d 783, 788 (Mass. 1991).

Many jurisdictions have considered the propriety of a convicted defendant asserting a malpractice action against former counsel. The majority have imposed a stricter standard for criminal malpractice actions in apparent recognition of three basic public policy principles: (1) the criminal justice system affords individuals charged with crimes a panoply of protections against abuses of the system and wrongful conviction, including safeguards against incompetent and ineffective counsel, see, e.g., Bailey v. Tucker, 621 A.2d 108, 114 (Pa. 1993); (2) it is wrong to allow a guilty defendant to profit from criminal behavior, see, e.g., Glenn, 569 N.E.2d at 788; and (3) the pool of legal representation available to criminal defendants, especially indigents, needs to be preserved, see, e.g., id. The standards adopted in these jurisdictions vary. For example, some require the former defendant to achieve exoneration through direct appeal or post-conviction relief, see Shaw v. State, Dept. of Admin., PDA, 816 P.2d 1358, 1360 (Alaska 1991), appeal after remand, 861 P.2d 566 (Alaska 1993); Morgano v. Smith, 879 P.2d 735, 737 (Nev. 1994); Stevens v. Bispham, 851 P.2d 556, 566 (Or. 1993); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995), some demand proof of actual innocence, see Orr v. Black & Furci, P.A., 876 F. Supp. 1270, 1276 (M.D. Fla. 1995); Bailey, 621 A.2d at 113; Glenn, 569 N.E.2d at 786; State Ex Rel. O'Blennis v. Adolf, 691 S.W.2d 498, 503 (Mo. Ct. App. 1985); Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987), and still others require a higher degree of culpability, see Bailey, 621 A.2d at 114-15 (former defendant must prove attorney's reckless or wanton disregard of his or her interest). In this case, the trial court dismissed Mahoney's malpractice claim according to the actual innocence approach, which we adopt for the three policy reasons deemed fundamental in other jurisdictions.

Our State's criminal justice system affords criminal defendants a host of protections, beginning with the right to constitutionally effective defense counsel, see State v. Henderson, 141 N.H. 615, 618, 689 A.2d 1336, 1339 (1997), whose quintessential role is to prevent an unjust conviction. In addition, a criminal defendant is protected by, inter alia, the law governing search and seizure, see State v. Pinkham, 141 N.H. 188, 189, 679 A.2d 589, 590 (1996), the probable cause requirement for arrest, see State v. Christy, 138 N.H. 352, 356, 639 A.2d 261, 264 (1994), the beyond a reasonable doubt standard for conviction, see State v. Wentworth, 118 N.H. 832, 838, 395 A.2d 858, 862 (1978), and post-conviction relief not afforded civil litigants, cf. State v. Daigle, 114 N.H. 679, 681, 327 A.2d 711, 713 (1974). The defense attorney, however, is the ultimate guardian of these constitutional rights, cf. In re Lisa G., 127 N.H. 585, 590, 504 A.2d 1, 4 (1986), who must defend the client against the immense resources of the State in its pursuit of a conviction. The process of criminal investigation and prosecution is designed to discover truth within constitutional parameters, protecting against the ultimate evil of convicting innocent persons and stripping them of their liberty. See Shaw v. State, Dept. of Admin., 861 P.2d 566, 570-71 (Alaska 1993). With this policy in mind, we must scrupulously protect the critical function of defense counsel to advocate for the client and to safeguard the accused's rights to a fair process, ensuring that any conviction reflects the truth. Any impediment to defense counsel's efforts to zealously protect the defendant is disfavored.

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