Rethinking Peeler


Rick Casey thinks we Texas criminal-defense lawyers are “coddled” (Paul Kennedy) because the Texas Supreme Court declared in 1995 in Peeler v. Hughes and Luce that, unless a criminal defendant is acquitted, his criminal acts are—as a matter of law—the sole proximate cause of his conviction and punishment.

Andrew Winters commented from New Hampshire:

Don’t be so quick to assume you can’t get sued. Take a look at this case here in New Hampshire: Hilario v. Reardon, 960 A. 2d 337 (2008). We have always had the traditional rule that actual innocence is a requirement for a criminal defendant to sue his lawyer for malpractice. In this case, however, the Court made an exception for *sentencing* related claims. A criminal defendant who acknowledges his guilt can still sue his lawyer for sentencing related errors. This stands to reason. Imagine a situation, for example, where a criminal defendant, because of his lawyer’s negligence, serves more than the statutory maximum. Should he not be allowed to sue for damages? Perhaps your courts will agree if faced with the right example.

Hilario v. Reardon isn’t exactly that broad:

In Mahoney, for example, Mahoney was essentially arguing that the defendants had committed malpractice by pursuing certain pre-trial tactics designed, in the final analysis, to avoid his indictment and conviction. He was, therefore, challenging professional judgments integrally related to the criminal process and the establishment of his guilt. In other words, he was contending that had his attorney acted differently, he would have obtained a different outcome. In contrast, assuming the plaintiff’s allegations to be true in this case, the malpractice alleged does not challenge the plaintiff’s convictions and is not an argument that if his attorney had acted differently, a different result would obtain. He has not, and does not now, challenge any tactical or strategic decision bearing upon his convictions. Thus, we believe this case distinguishable from Mahoney.
. . . .
The claim at issue here . . . is not that the plaintiff received a longer sentence than he ought because of his attorney’s deficient performance, which would clearly be related to the attorney’s representation in the criminal process. Instead, it is that once he had agreed to a sentence and had entered into an agreement with the State for the attachment of certain conditions that would permit him to petition for suspension of part of that sentence, it was the negligence of his attorney that upset the agreement.

The emphasis is mine. New Hampshire law was before Hilario and (from my reading of Hilario) is now that a defendant who hasn’t been acquitted can’t sue his lawyer, even if he received a longer sentence than he ought because of the lawyer’s deficient performance. Mr. Hilario was trying to hold Mr. Reardon responsible for filing a motion to withdraw his guilty plea, which Hilario alleged to have been unauthorized (a good argument for documenting clients’ bad legal decisions in the file) and which lost Mr. Hilario the benefit of his plea bargain. If true, the decision to file the motion to withdraw the guilty plea was (in the view of Hilario) not a tactical or strategic decision in the criminal process. Here’s the narrow holding:

in this case, where the alleged legal malpractice occurred after the plea and sentencing, where the claim is unrelated to any strategic or tactical decision relating to the plaintiff’s convictions, and where the plaintiff does not argue that but for his attorney’s negligence he would have obtained a different result in the criminal case, the legal malpractice action is not barred by Mahoney.

So even in Live-Free-or-Die New Hampshire it appears that a defendant can’t sue his lawyer for deficient performance resulting in a too-long sentence.

My off-the-cuff reaction to Andrew’s proposition that a defendant should be able to sue his lawyer when the lawyer’s deficient performance—even related to the lawyer’s representation in the legal process—results in a too-long sentence was: “stands to reason.”

But the more I chewed on the idea, the more it seemed that that rule would do more harm than good.

First, anyone who gets mail from prison knows that incarcerated people have way too much free time on their hands. Also, incarcerated people are often unhappy with their lot. Allowing prisoners’ civil claims that their lawyers’ negligence lengthened their sentences to survive summary judgment would create a boom in prison litigation, would tie up lots of criminal-defense lawyers (especially those representing the indigent, whose problems are often too deep for any successful defense) in fighting meritless claims, and would drive good and non-negligent lawyers out of the practice of criminal law.

But that’s the argument from the lawyer’s point of view, which Rick Casey might call the “coddle us” argument.

As in the case of liability insurance, there’s a better argument to be made from the point of view of the clients:

The criminal-defense lawyer’s job doesn’t end when a client is convicted. Getting the client the lightest possible sentence is part of the job too. It is no less unjust for a factually-guilty person to be punished too severely than for an innocent person to be convicted.

The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.

A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal-defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.

So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.

Which brings us to the other half of Peeler: that a person who has been acquitted can sue his lawyer for negligence. Since the erring lawyer is often the key to his former client’s freedom, and since freedom is a greater good than money, a rule that discourages lawyers from doing everything possible to correct their mistakes and get their clients free needs some strong justification.

I haven’t heard of a single negligence suit by a client against a criminal-defense lawyer getting past a motion for summary judgment since I started practicing. The wall of Peeler is so high that doing away with criminal-defense lawyers’ E&O liability altogether wouldn’t change have changed any defendant’s lives for the worse.

Eliminating liability altogether might, however, by removing an obstacle to lawyers testifying truthfully, in motions for new trial and writs of habeas corpus, about their past errors, however, have changed some defendants’ lives for the better.


3 responses to “Rethinking Peeler”

  1. I agree with you generally, but what of the institutional barriers to post-conviction relief, even if in the form of a lesser sentence? Most states take the position “too bad”. If your lawyer erred and you got a longer sentence than you should have, we’ll give you the world’s smallest violin.

    I cannot disagree with the idea that lawyers must be encouraged to admit their mistakes and help their clients remedy the effects of those mistakes, but I fear that it may result in no actual benefit.

    Not that suing the lawyer is any better.

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