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Cooke v. Williams
IAN T. COOKE v. JOHN R. WILLIAMS ET AL.
(SC 20719)
Robinson, C. J., and McDonald, D’Auria, Mullins and Ecker, Js.
Syllabus
The plaintiff, who previously had been convicted of murder, among other
crimes, sought to recover damages from the defendants, his former
attorney and his law firm, for, inter alia, their alleged legal malpractice
and fraud while representing him in connection with a federal civil rights
action and a separate, state habeas action. In his unsuccessful habeas
action, the plaintiff alleged that the attorney who had represented him
at his murder trial provided ineffective assistance of counsel. In the
present malpractice action, the plaintiff claimed, inter alia, that the
defendants had failed to prosecute his habeas petition fully and properly.
The trial court granted the defendants’ motion to dismiss the plaintiff’s
claims relating to the habeas action, concluding that those claims
sounded in legal malpractice and were not ripe for adjudication because
the plaintiff’s underlying criminal conviction had not been invalidated
either on appeal or in a postconviction proceeding. The plaintiff appealed
to the Appellate Court, asserting that the trial court had improperly
dismissed his legal malpractice claim. The plaintiff also contended that
the Appellate Court had improperly dismissed his fraud claim because
it was distinct from any claim of legal malpractice. The Appellate Court
affirmed the trial court’s judgment with respect to the plaintiff’s legal
malpractice claim, but it reversed with respect to the fraud claim, reasoning that the fraud claim was distinct from the legal malpractice claim
because the former did not challenge the validity of the plaintiff’s underlying conviction. The plaintiff, on the granting of certification, appealed
to this court.
Held that, as a matter of form, the Appellate Court improperly affirmed the
trial court’s dismissal of the plaintiff’s legal malpractice claim for lack
of subject matter jurisdiction, this court having concluded that appellate
or postconviction relief from the plaintiff’s underlying conviction was
a necessary element of his claim for malpractice against his former
attorneys and that the plaintiff’s failure to plead or prove that he had
obtained such relief meant that his malpractice claim was insufficient
as a matter of law rather than subject to dismissal for lack of jurisdiction:
This court disagreed with the holding in Taylor v. Wallace (184 Conn.
App. 43), on which the Appellate Court relied in the present case, that
a criminally convicted plaintiff’s failure to obtain appellate or postconviction relief from his conviction prior to commencing a criminal malpractice action, that is, a legal malpractice action against an attorney who
previously had represented the criminally convicted plaintiff in a criminal
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Cooke v. Williams
or habeas case, renders the action unripe and presents an issue of justiciability that implicates a court’s subject matter jurisdiction.
Rather, this court determined that, because legal malpractice claims are
of the type of claims that courts have the authority to adjudicate, the
question was not whether a court is competent to adjudicate the controversy between the parties or whether there is a live controversy between
the parties but, rather, whether a criminally convicted plaintiff who had
not obtained appellate or postconviction relief from his conviction has
alleged facts sufficient to state a valid cause of action for criminal malpractice, and whether that requirement has been met is a matter concerning sufficiency of the pleadings.
In determining the necessary elements of a criminal malpractice claim,
this court observed that the adjudication of causation and harm in a
criminal malpractice action ordinarily will necessarily implicate the finding of the criminally convicted plaintiff’s guilt in the underlying criminal
case, and a verdict in favor of the plaintiff in the criminal malpractice
action would undermine the validity of his criminal conviction.
Accordingly, this court joined the majority of other jurisdictions that
have addressed the issue and adopted the exoneration rule, and, pursuant
to that rule, when proof of a criminal malpractice claim requires a plaintiff
to prove that his former attorney’s negligence was a proximate cause
of his underlying criminal conviction, the claim is insufficient as a matter
of law unless the plaintiff has obtained appellate or postconviction relief
from his underlying conviction.
In adopting the exoneration rule, this court reasoned that such a rule
supports the judicial policy against inconsistent judgments arising out
of the same transaction, which would occur if a plaintiff whose criminal
conviction had not been overturned were to prevail in a criminal malpractice action alleging that, in the absence of the attorney’s negligence, the
plaintiff would not have been convicted.
This court also reasoned that there are other mechanisms to obtain
redress for the negligence of criminal defense counsel, including the
elaborate remedial system embodied in Connecticut’s postconviction
review laws, which provide comprehensive and robust procedures that
are intended to address allegations that a criminal conviction was the
result of the ineffective assistance of counsel, thereby ensuring that
any wrongs resulting from such ineffective assistance will be identified
and addressed.
This court made clear that, if a plaintiff’s claim in a criminal malpractice
action does not require findings that would undermine the validity of
the underlying conviction, such a claim would not be barred for lack of
exoneration, and, in the present case, the Appellate Court correctly
concluded that the plaintiff’s fraud claim, which related to the plaintiff’s
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Cooke v. Williams
fee dispute with the defendants, could proceed, as that claim did not
challenge the validity of the plaintiff’s conviction.
To prevail on his malpractice claim, however, the plaintiff was required
to prove that the defendants’ conduct was the proximate cause of his
harm, namely, the denial of his habeas petition and continued incarceration, the plaintiff necessarily would have had to prove that he would
have prevailed in his habeas action if the defendants’ negligence had
not occurred, and such a claim necessarily challenged the validity of the
plaintiff’s underlying conviction.
Accordingly, because the plaintiff could not establish that he had
obtained appellate or postconviction relief from his conviction, he failed
to state a cognizable claim of criminal malpractice against the defendants,
and, accordingly, the plaintiff’s criminal malpractice claim should have
been the subject of a motion to strike rather than a motion to dismiss.
(One justice concurring separately)
Argued September 14, 2023—officially released June 25, 2024
Procedural History
Action to recover damages for, inter alia, legal malpractice, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, Markle, J., granted in part the defendants’ motion
to dismiss and rendered judgment thereon; thereafter,
the plaintiff withdrew the remaining counts of his complaint and appealed to the Appellate Court, Bright, C.
J., and Suarez and DiPentima, Js., which reversed in
part the trial court’s judgment and remanded the case
to that court with direction to deny the motion to dismiss only as to the plaintiff’s claim of fraud relating
solely to a fee dispute, and the plaintiff, on the granting
of certification, appealed to this court. Reversed in part;
further proceedings.
Michael W. Brown, for the appellant (plaintiff).
William Tong, attorney general, and Stephen R. Finucane, assistant attorney general, filed a brief for the
state of Connecticut as amicus curiae.
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Kenneth Rosenthal and Audrey Felsen filed a brief
for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Opinion
MULLINS, J. In Taylor v. Wallace, 184 Conn. App. 43,
51–52, 194 A.3d 343 (2018), the Appellate Court adopted
what is generally referred to as the exoneration rule
for civil claims seeking relief against a plaintiff’s former
criminal defense or habeas counsel for harm allegedly
caused by the lawyer’s legal malpractice.1 The exoneration rule2 provides that appellate or postconviction relief
is a necessary element of a claim for criminal malpractice if that claim challenges the validity of an underlying
conviction by requiring proof that the attorney’s negligence was the cause of the plaintiff’s conviction as a defendant in the underlying criminal case. Id. The Appellate
Court in Taylor further explained that the failure to obtain
appellate or postconviction relief renders the criminal
malpractice claim unripe and, therefore, not justiciable.
Id. Applying the exoneration rule to the present case,
the Appellate Court upheld the trial court’s dismissal
of the claim of criminal malpractice filed by the plaintiff,
Ian T. Cooke, against the defendants, John R. Williams
and John R. Williams and Associates, LLC, the attorney
and law firm that represented the plaintiff in his habeas
case.3 Cooke v. Williams, 206 Conn. App. 151, 165,
259
A.3d 1211 (2021).
1
We use the term ‘‘criminal malpractice’’ to refer to claims in which a
lawyer is sued for legal malpractice by a client he or she has previously
represented in a criminal or habeas case.
2
‘‘Exoneration,’’ as the term is used in this context, means that a convicted
person has obtained appellate or postconviction relief from his or her conviction.
3
The defendants did not participate in this appeal. Pursuant to Practice
Book § 67-7, we granted the application of the state of Connecticut and the
Connecticut Criminal Defense Lawyers Association to appear and file briefs
as amici curiae and to appear at oral argument to respond to questions by
this court.
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This case presents our first opportunity to address
whether to adopt the exoneration rule in Connecticut.
After review, we join the majority of other jurisdictions
that also have adopted the exoneration rule. In doing
so, we explain herein that appellate or postconviction
relief from the underlying criminal conviction is a necessary element of a criminal malpractice claim if that
claim requires findings that would undermine the validity of the criminal conviction. To avoid this unacceptable scenario, we hold that a plaintiff must plead and
prove that he or she has obtained a favorable resolution
of the underlying criminal case to state a cognizable
claim of criminal malpractice. We also clarify that the
failure to plead and prove exoneration is not an issue
of justiciability and, thus, does not implicate the subject
matter jurisdiction of the court. Instead, under our rules
of practice, the failure to state a legally sufficient claim
is subject to a motion to strike, rather than a motion
to dismiss.
In the present case, we conclude that, because the
plaintiff’s claim of criminal malpractice necessarily requires
findings that would undermine the validity of his underlying conviction and he has not obtained appellate or
postconviction relief, he has not alleged a cognizable
claim of criminal malpractice. We reverse the Appellate
Court’s judgment dismissing the criminal malpractice
claim for lack of subject matter jurisdiction and remand
for further proceedings consistent with this opinion.
The following facts and procedural history, as set
forth by the Appellate Court, are relevant to our resolution of this appeal. In 2006, the plaintiff shot and killed
two people with a sawed-off shotgun. See State v. Cooke,
134 Conn. App. 573, 575–76,
39 A.3d 1178, cert. denied,
305 Conn. 903,
43 A.3d 662 (2012). Four years later, he
was convicted, after a jury trial, of two counts of murder, among other crimes, and sentenced to a term of
life imprisonment without the possibility of release. Id.,
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576–77. The plaintiff appealed his conviction, which the
Appellate Court affirmed. Id., 581.
In 2011, as a self-represented party, the plaintiff filed
a petition in state court for a writ of habeas corpus,
alleging ineffective assistance of his criminal trial counsel. Cooke v. Williams, supra, 206 Conn. App. 153. In
that petition, the plaintiff had alleged that his criminal
trial counsel was ineffective due to ‘‘his failures to investigate and to present a defense, to use expert witnesses,
particularly experts in forensic science, and to ensure
the plaintiff’s competency to stand trial.’’ Id., 157.
Shortly after he filed the petition, the plaintiff retained
the defendants to represent him. Id.
Around the same time, the plaintiff, also initially as a
self-represented party, commenced a civil rights action
in federal court, alleging numerous constitutional and
tort claims stemming from the conditions of his pretrial
incarceration. Id., 153. The state habeas petition did
not proceed while proceedings concerning the federal
petition were ongoing. See id., 153–54. Ultimately, the
defendants agreed to represent the plaintiff in the federal civil rights action as well. Id., 153. In 2014, the
federal civil rights action was settled. Id.
After the federal action settled, the habeas court proceeded with the trial on the plaintiff’s pending 2011
state habeas petition. Id., 154. At the habeas trial, the
plaintiff wanted to call an expert witness who would
present evidence of a third-party perpetrator and ballistics suggesting that a firearm other than that posited
by the prosecution was the murder weapon. Id., 157.
The defendants, however, presented no such evidence.
Id. Following the trial, the habeas court rejected the
plaintiff’s claim of ineffective assistance of counsel and
consequently denied the petition for a writ of habeas
corpus. See id., 154.
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Thereafter, the plaintiff, as a self-represented party,
commenced the present action against the defendants
based on their representation of him in both the federal
civil rights action and the habeas proceeding. Id. In his
amended eight count complaint, the plaintiff asserted
claims for legal malpractice, negligence, fraud, breach
of the covenant of good faith and fair dealing, and
breach of contract.4 See id. He alleged that the defendants, in violation of their duties, neglected to prosecute
his habeas petition fully and properly.
Specifically, the plaintiff alleged that the defendants’
failures ‘‘in investigation and comprehension of the
facts of the case yielded a failure to present and prove
prejudice’’ pursuant to Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). He
further alleged that the defendants failed to prosecute
his habeas action fully and properly because the
‘‘aspects of the case that were investigated were misused by the defendants due to failures to comprehend
the requisite law, facts and issues, and to have any
coherent trial strategy . . . .’’ The plaintiff also alleged
that the ‘‘defendants failed to adequately prepare the
plaintiff for trial,’’ ‘‘failed to develop evidence in support
of the habeas case,’’ and ‘‘failed to properly prepare
and present court documents, [including] . . .
motions, posttrial briefs, and postjudgment remedies.’’
4
The plaintiff’s complaint included the following counts against the defendants: (1) legal malpractice for their representation of him in his federal
civil rights action; (2) criminal malpractice for their representation of him
in his state habeas action; (3) negligence for their representation of him in
his federal civil rights action; (4) negligence for their representation of him
in his state habeas action; (5) fraud/unjust enrichment for their representation of him in his federal civil rights action; (6) fraud for their representation
of him in his state habeas action; (7) breach of the implied covenant of
good faith and fair dealing for their representation of him in his federal civil
rights action; and (8) breach of contract for their representation of him in
both the federal civil rights action and the state habeas proceeding. All of
the claims regarding the federal civil rights action have subsequently been
withdrawn. See footnote 5 of this opinion.
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The plaintiff claimed that he ‘‘suffered financial loss
and/or hardship and/or mental and emotional distress
as a result.’’
For these alleged failures, the plaintiff sought monetary damages, as well as injunctive and declaratory relief.
In particular, he requested that the defendants be suspended or disbarred from the practice of law and that
the trial court ‘‘[i]ssue a declaratory ruling stating that
the plaintiff’s right to counsel pursuant to the sixth
amendment to the [United States] constitution and article first, § 8, of the Connecticut constitution, as well as
the common-law rights to counsel, [had] been violated
wherein the defendant[s] provided ineffective assistance
of counsel.’’
The defendants filed a motion to dismiss the plaintiff’s action. They argued that the plaintiff’s claims relating to the state habeas proceedings were not justiciable
because his underlying criminal conviction had not been
vacated through either a direct appeal or a successful
petition for a writ of habeas corpus.5
After hearing argument, the trial court issued its
memorandum of decision, granting the motion to dismiss as to all of the plaintiff’s claims relating to the
habeas proceedings. The court rejected the plaintiff’s
argument that his present action was independent of
his underlying criminal conviction because he was not
challenging his conviction but was, instead, seeking
5
The defendants also asserted that the plaintiff’s claims related to his
federal civil rights action should be dismissed because they were barred by
the statute of limitations. Ultimately, the trial court denied the motion to
dismiss for the counts related to his federal civil rights action (counts one,
three, five, and seven and count eight ‘‘to the extent it is based on the
circumstances of the plaintiff’s federal civil rights action’’). The trial court
reasoned that a statute of limitations special defense must be specially
pleaded and cannot be raised by a motion to dismiss. Ultimately, the plaintiff
withdrew the counts of his complaint related to his federal civil rights action,
and, therefore, those claims are not the subject of this appeal.
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monetary damages, in part, for the fraudulent billing by
the defendants for work they had not done.6 Ultimately,
relying on Taylor, the trial court concluded that all of
the plaintiff’s claims against the defendants sounded in
legal malpractice and were not ripe for adjudication
because his underlying criminal conviction had not
been invalidated.
The plaintiff appealed to the Appellate Court. He
claimed that the trial court improperly dismissed (1)
his criminal malpractice claim by misapplying the justiciability bar to criminal malpractice claims set forth in
Taylor, a bar originally articulated in Heck v. Humphrey, 512 U.S. 477, 486–87,
114 S. Ct. 2364,
129 L. Ed.
2d 383 (1994), and (2) his fraud claim because it was
distinct from his claim of criminal malpractice. Cooke
v. Williams, supra, 206 Conn. App. 153. With respect
to the criminal malpractice claim, the Appellate Court
affirmed the judgment of the trial court. Id., 165, 177.
The Appellate Court reasoned that, ‘‘[t]o prove his malpractice action, [the plaintiff] presumably would have
[had] to prove that he would not have sustained the
injury had professional negligence not occurred. Thus,
a successful result in this case would necessarily imply
that the conviction was improper. Inconsistency of
judgments is avoided by the requirement that the conviction first be vacated.’’ (Internal quotation marks
omitted.) Id., 162. The Appellate Court explained that
‘‘the plaintiff’s [criminal] malpractice claim [was] a collateral attack on his underlying conviction that ha[d]
not been invalidated either on direct appeal . . . or
through habeas proceedings.’’ (Citation omitted.) Id.,
162–63. On the basis of this analysis, the Appellate Court
concluded that the plaintiff’s criminal malpractice claim
was not ripe for adjudication. Id., 165.
6
The plaintiff alleged that, in total, he incurred $258,442.65 in charges
that were fraudulent.
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The Appellate Court reached a different conclusion
with respect to the plaintiff’s claim of fraud relating
to the fee dispute. Id., 165–66. The Appellate Court
reasoned that the plaintiff’s fraud claim was distinct
from his criminal malpractice claim because proof of
the fraud claim did not challenge the validity of his
underlying conviction. Id., 166. As a result, the Appellate
Court reversed the judgment of the trial court with
respect to the claim of fraud and remanded the case
to the trial court with direction to deny the motion to
dismiss as to the fraud claim.7 Id., 177. This appeal
followed.
We granted the plaintiff’s petition for certification to
appeal from the judgment of the Appellate Court. Cooke
v. Williams, 343 Conn. 919, 919–20,
275 A.3d 213 (2022).
Our grant of certification was limited to the following
issue: ‘‘Did the Appellate Court correctly conclude that
the justiciability bar set forth in Heck v. Humphrey,
[supra,512 U.S. 477], which the Appellate Court adopted
in Taylor v. Wallace, [supra,184 Conn. App. 43], required
dismissal of the plaintiff’s [criminal] malpractice claims
against his former habeas counsel as unripe in the
absence of prior invalidation of the plaintiff’s underlying
criminal conviction?’’ Cooke v. Williams, supra, 343
Conn. 920.
After having reviewed the plaintiff’s brief and the
briefs of the amici curiae, we recognize that the certified
question does not adequately frame the more fundamental issue posed by the present case, that is, what elements must a criminally convicted plaintiff plead and
prove to assert a cognizable cause of action of criminal
malpractice against his habeas or criminal trial counsel.
Consequently, we reformulate the certified question to
conform to the issue actually presented. See, e.g., Rosado
v. Bridgeport Roman Catholic Diocesan Corp., 276
7
The plaintiff’s claim of fraud is not part of the present appeal.
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Conn. 168, 191–92, 884 A.2d 981 (2005) (this court may
reframe certified question to more accurately reflect
issue presented). The specific issue before us is one of
first impression for this court: whether appellate or
postconviction relief from the underlying conviction is
a necessary element of a claim of criminal malpractice
filed by a criminally convicted plaintiff.
Before we tackle that issue, and to provide some
clarity on our ultimate conclusion, it is helpful to first
examine Heck v. Humphrey, supra,512 U.S. 477, and
its relationship to the Appellate Court’s adoption of
what it called a ‘‘justiciability bar’’ for criminal malpractice claims filed by criminally convicted plaintiffs.
Cooke v. Williams, supra, 206 Conn. App. 153. In Heck,
the United States Supreme Court examined whether
a prisoner may challenge the constitutionality of his
conviction in an action for damages under 42 U.S.C.
§ 1983. Heck v.
Humphrey, supra, 487. In that case, the
petitioner, Roy Heck, had been convicted in an Indiana
state court of voluntary manslaughter. Id., 478. At the
time of his appeal, he was serving a fifteen year prison
sentence. Id. While the appeal from his conviction was
pending, Heck filed an action in federal court under 42
U.S.C. § 1983, against two of the prosecutors and an
investigator involved in his criminal action, claiming
that they had engaged in an ‘‘unlawful, unreasonable,
and arbitrary investigation leading to [his] arrest; knowingly destroyed [exculpatory] evidence . . . and
caused an illegal and unlawful voice identification procedure to be used at [his] trial.’’ (Internal quotation
marks omitted.) Id., 479. Heck sought compensatory
and punitive monetary damages but did not seek injunctive relief or release from custody. Id. While the appeal
in his § 1983 action was pending, the Indiana Supreme
Court upheld his conviction and sentence in his direct
appeal. Id.
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Analogizing Heck’s claims of legal malfeasance to a
common-law claim of malicious prosecution, the United
States Supreme Court explained that ‘‘[o]ne element
that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. . . . This requirement
avoids parallel litigation over the issues of probable
cause and guilt . . . and it precludes the possibility of
the [plaintiff’s] . . . succeeding in the tort action after
having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out of the same or identical transaction. . . . Furthermore, to permit a convicted criminal defendant to
proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the
vehicle of a civil suit. . . . [The United States Supreme]
Court has long expressed similar concerns for finality
and consistency and has generally declined to expand
opportunities for collateral attack . . . . We think the
hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness
of his conviction or confinement, just as it has always
applied to actions for malicious prosecution.’’ (Citations omitted; footnote omitted; internal quotation marks
omitted.) Id., 484–86.
Accordingly, the court held that, ‘‘in order to recover
damages for [an] allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such [a] determination, or
called into question by a federal court’s issuance of a
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Cooke v. Williams
writ of habeas corpus . . . [pursuant to] 28 U.S.C.
§ 2254. A claim for damages bearing that relationship
to a conviction or sentence that has not been so invalidated is not cognizable under [42 U.S.C.] § 1983.’’ (Emphasis altered; footnote omitted.) Id., 486–87.
Although Heck involved a civil rights complaint
brought under § 1983, alleging that Heck’s prosecution
violated his civil rights; see id., 479; courts have relied
on its reasoning when addressing claims of criminal
malpractice brought by convicted criminal defendants
against their criminal defense attorneys. See, e.g., Britt
v. Legal Aid Society, Inc., 95 N.Y.2d 443, 448,
741 N.E.2d
109,
718 N.Y.S.2d 264 (2000) (‘‘[t]he principle . . . that
‘civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments’
. . . applies with equal force to [criminal malpractice
claims]’’ (citation omitted)); Gibson v. Trant, 58 S.W.3d
103, 108–109 (Tenn. 2001) (citing Heck as analogous
authority for proposition that plaintiff in criminal malpractice action must obtain exoneration before bringing
action). Among those courts that have applied the rationale of Heck outside of the § 1983 context is our own
Appellate Court.
In Taylor v. Wallace, supra,184 Conn. App. 43, the
criminally convicted plaintiff brought a criminal malpractice action against the lawyer who represented him
in his unsuccessful habeas trial. See id., 45–46. The
Appellate Court relied on the policy rationale applied
in Heck and concluded that it lacked subject matter
jurisdiction over a claim of criminal malpractice against
the plaintiff’s former habeas counsel because the plaintiff had not obtained appellate or postconviction relief
from his conviction. Id., 49. The Appellate Court ‘‘agree[d]
with the policy enunciated in Heck: if success in a tort
action would necessarily imply the invalidity of a conviction [by requiring a finding that the underlying conviction was the result of the attorney’s negligence], the
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Cooke v. Williams
action is to be dismissed unless the underlying conviction has been invalidated.’’ Id., 51. The court held that,
because the plaintiff’s conviction had withstood multiple attacks, as ‘‘long as the conviction stands, an action
collaterally attacking the conviction may not be maintained.’’ (Footnote omitted.) Id., 52. The Appellate Court
concluded that the claim was nonjusticiable and dismissed it. See id., 51–52 and n.5.
One observation is immediately apparent. The United
States Supreme Court in Heck determined that the plaintiff failed to state a legally cognizable claim in the absence
of a favorable disposition of the underlying conviction.
Heck v. Humphrey, supra, 512 U.S. 486–87. The court
did not conclude that the failure to state a claim rendered the claim nonjusticiable. Indeed, it is ‘‘firmly
established . . . that the absence of a valid . . . cause
of action does not implicate [subject matter] jurisdiction . . . .’’ Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89,
118 S. Ct. 1003,
140 L. Ed. 2d
210 (1998). Unlike in Heck, in which the United States
Supreme Court interpreted the failure to obtain a favorable resolution of the underlying conviction as a failure
to state a claim; Heck v. Humphrey, supra, 486–87; the
Appellate Court in Taylor analyzed the issue as one of
justiciability, concluding that the plaintiff’s claim was
not ripe because his criminal conviction had not been
invalidated. Taylor v. Wallace, supra, 184 Conn. App.
51–52. In doing so, the Appellate Court relied on the
rationale that ‘‘[a] tort case is not ripe for adjudication
if resolution of an unresolved underlying case is necessary for reliable adjudication.’’ Id., 51.
Having reviewed Heck and Taylor, we find the analyses in both cases instructive. Although not directly on
point, we agree that the rationale of Heck helps inform
our resolution of the issue of whether a plaintiff must
obtain postconviction or appellate relief from an underlying criminal conviction before he or she can state a
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Cooke v. Williams
cognizable claim of criminal malpractice. To the extent
that Taylor adopts the underlying reasoning of Heck,
we agree.
We disagree, however, with the Appellate Court’s
determination in Taylor that the failure to obtain appellate or postconviction relief presents an issue of justiciability that implicates a court’s subject matter
jurisdiction. ‘‘[J]usticiability . . . implicate[s] a court’s
subject matter jurisdiction and its competency to adjudicate a particular matter.’’ (Internal quotation marks
omitted.) Francis v. Board of Pardons & Paroles, 338
Conn. 347, 358,
258 A.3d 71 (2021). Because legal malpractice claims are of the type that courts have the
power to adjudicate, the issue is not whether the court
is competent to adjudicate the controversy between the
parties or whether there is a live controversy between
the parties. Rather, the issue is whether a criminally
convicted plaintiff who has not obtained appellate or
postconviction relief from the underlying conviction
has alleged facts that are sufficient to state a valid
cause of action for criminal malpractice. Consequently,
whether that requirement is met is a matter of the sufficiency of the pleadings, not the power of the court to
entertain the action.
Having clarified that the issue is not one of justiciability, we now turn to the question of whether appellate
or postconviction relief from the underlying criminal
case is a necessary element of a claim of criminal malpractice relating to representation in the underlying
criminal or habeas case.8 We begin our analysis by look-
8
The plaintiff asserts that this court already has decided that favorable
resolution of an underlying criminal conviction is not required to sustain a
cause of action for malpractice for criminally convicted plaintiffs. Specifically, the plaintiff asserts that, in Bozelko v. Papastavros, 323 Conn. 275,
283–85, 147 A.3d 1023 (2016), this court examined what was required to
prove causation in a criminal malpractice claim against a criminal defense
attorney and did not suggest that exoneration was necessary. We disagree
that this issue was decided in Bozelko.
In Bozelko, the convicted plaintiff brought a claim of criminal malpractice
against her criminal defense attorney. Id., 278–79. The issue before this
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Cooke v. Williams
ing at the elements of a traditional legal malpractice
claim.
‘‘In general, the plaintiff in [a legal] malpractice action
must establish: (1) the existence of an attorney-client
relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.’’ (Internal quotation marks omitted.) Grimm v. Fox, 303 Conn. 322, 329,
33 A.3d 205 (2012). ‘‘The essential element of causation
has two components. The first component, causation
in fact, requires us to determine whether the injury
would have occurred but for the [attorney’s] conduct
. . . . The second component, proximate causation,
requires us to determine whether the [attorney’s] conduct is a substantial factor in bringing about the plaintiff’s injuries. . . . The existence of the proximate
cause of an injury is determined by looking from the
injury to the negligent act complained of for the necessary causal connection. . . . In legal malpractice
actions arising from prior litigation, the plaintiff typically proves that the . . . attorney’s professional negligence caused injury to the plaintiff by presenting
evidence of what would have happened in the underlying action had the [attorney] not been negligent. . . .
More specifically, the plaintiff must prove that, in the
absence of the alleged breach of duty by her attorney,
the plaintiff would have prevailed [in] the underlying
cause of action and would have been entitled to judgment. . . . To meet this burden, the plaintiff must produce evidence explaining the legal significance of the
court was whether the trial court properly had granted the defendant’s
motion for summary judgment because the plaintiff failed to disclose an
expert witness. Id., 277. This court concluded that expert testimony was
required for a legal malpractice action. Id., 289–90. None of the parties raised
the claim presented in the present case, namely, that the plaintiff had not
alleged a valid cause of action for criminal malpractice because she had
not obtained a favorable resolution of her underlying criminal case. Therefore, that issue was not before the court in Bozelko and, thus, was not
decided in that case.
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attorney’s failure and the impact this had on the underlying action.’’ (Citations omitted; internal quotation marks
omitted.) Bozelko v. Papastavros, 323 Conn. 275, 283–
84, 147 A.3d 1023 (2016); see, e.g., Mayer v. Biafore,
Florek & O’Neill, 245 Conn. 88, 92,
713 A.2d 1267 (1998)
(‘‘[i]n general, the plaintiff in an attorney malpractice
action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or
omission; (3) causation; and (4) damages’’).
We agree with the Oregon Supreme Court that ‘‘[l]egal
malpractice is a common-law tort claim. In the absence
of any pertinent legislation, it is for this court to define
what constitutes legally cognizable harm in a tort case.
The legislature has not addressed directly the question
of when a person whose lawyer in a criminal case is
guilty of professional negligence has been harmed for
the purposes of a professional negligence action; [the]
court therefore must do so.’’ Stevens v. Bispham, 316
Or. 221, 229,
851 P.2d 556 (1993).
Having carefully considered the issue, we conclude
that the adjudication of causation and harm in a criminal
malpractice case ordinarily will necessarily implicate
the finding of guilt in the underlying criminal case, and
a verdict in favor of the plaintiff will thereby undermine
the legitimacy of the criminal conviction, as the courts
in Heck and Taylor explained. See Heck v. Humphrey,
supra, 512 U.S. 484–85; Taylor v.
Wallace, supra, 184
Conn. App. 51–52. We join the jurisdictions that have
reached the same conclusion and, as a result, require
that a convicted criminal defendant turned civil plaintiff
must prove that he or she has obtained either postconviction or appellate relief from his or her conviction
before pursuing a criminal malpractice action. See, e.g.,
Trigg v. Farese, 266 So. 3d 611, 616 (Miss. 2018) (‘‘We
join the substantial majority of courts in holding that,
because these allegations would entitle the plaintiff to
relief from his underlying conviction, he must first pur-
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Cooke v. Williams
sue them through the [criminal justice] process. In other
words, a convict must ‘exonerate’ himself by obtaining
relief from his conviction or sentence before he may
pursue a claim against his defense attorney for causing
him to be convicted or sentenced more harshly than
he should have been.’’); Gibson v. Trant, supra,58 S.W.3d
108 (‘‘The large majority of courts [that have] address[ed]
this issue have held that some form of exoneration is
a precondition to maintaining a criminal malpractice
claim. A plaintiff must meet this exoneration requirement before he can sue his defense lawyer.’’).
Although the majority of jurisdictions adhere to this
requirement and have imposed an exoneration rule,
they are far from uniform in their approach. Some jurisdictions require plaintiffs to prove only that they have
obtained appellate or postconviction relief, i.e., having
the conviction overturned or being granted habeas relief.9
9
See, e.g., Hastings v. Wilbur Smith Law Firm, Docket No. 20-10313,
2021 WL 3207320, *3 (11th Cir. July 29, 2021) (‘‘a convicted criminal defendant
must obtain appellate or [postconviction] relief as a precondition to maintaining a legal malpractice action’’); Shaw v. State, Dept. of Administration,
816 P.2d 1358, 1360 (Alaska 1991) (‘‘[w]e hold that a convicted criminal
defendant must obtain [postconviction] relief before pursuing an action for
legal malpractice against his or her attorney’’); Steele v. Kehoe, 747 So. 2d
931, 933 (Fla. 1999) (‘‘a convicted criminal defendant must obtain appellate
or postconviction relief as a precondition to maintaining a legal malpractice
action’’); Noske v. Friedberg, 656 N.W.2d 409, 414 (Minn. App.) (date of
conviction relief triggers accrual of criminal malpractice action), aff’d, 670
N.W.2d 740 (Minn. 2003); Johnson v. Schmidt,
719 S.W.2d 825, 826 (Mo.
App. 1986) (‘‘[i]n order for [the] appellant to proceed on his alleged claim
of legal malpractice, he must first allege and establish that the actions or
omissions by [the] respondent prevented his acquittal’’); Clark v. Robison,
113 Nev. 949, 951,
944 P.2d 788 (1997) (once relief from conviction is granted,
criminal malpractice claim may be brought); Stevens v. Bispham, supra,
316 Or. 230–31 (reversal through direct appeal, postconviction relief or
otherwise is required to bring professional negligence claim against criminal
defense counsel); Gibson v. Trant, supra,58 S.W.3d 116 (adopting requirement that plaintiff must prove exoneration to bring criminal malpractice
action); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995)
(‘‘[b]ecause of public policy, we side with the majority of courts and hold
that plaintiffs who have been convicted of a criminal offense may negate
the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal,
through [postconviction] relief, or otherwise’’); Adkins v. Dixon, 253 Va.
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Others take a more stringent approach and require that
plaintiffs in criminal malpractice actions not only prove
that they have obtained appellate or postconviction relief
but also prove by a preponderance of the evidence that
they are actually innocent of the crimes of which they
wereconvicted(actualinnocence).10 Undereitherapproach,
most jurisdictions make proof of appellate or postconviction relief—whether it be solely appellate or postconviction relief or such relief and proof of actual
innocence—an additional element of a criminal mal-
275, 281–82, 482 S.E.2d 797 (‘‘a [postconviction] ruling adverse to the defendant will prevent a recovery for legal malpractice’’), cert. denied,
522 U.S.
937,
118 S. Ct. 348,
139 L. Ed. 2d 270 (1997); Falkner v. Foshaug,
108 Wn.
App. 113, 118–19,
29 P.3d 771 (2001) (appellate court’s reversal of conviction
on ineffective assistance grounds gave rise to criminal malpractice action).
10
See, e.g., Coscia v. McKenna & Cuneo, 25 Cal. 4th 1194, 1200,
25 P.3d
670,
108 Cal. Rptr. 2d 471 (2001) (‘‘[i]n a legal malpractice case arising out
of a criminal proceeding, California, like most jurisdictions, also requires
proof of actual innocence’’); Ray v. Stone, 952 S.W.2d 220, 224 (Ky. App.
1997) (‘‘[b]efore it can be demonstrated that the attorney’s actions were the
proximate cause of his damages, the plaintiff must establish his innocence’’);
Glenn v. Aiken, 409 Mass. 699, 707,
569 N.E.2d 783 (1991) (‘‘in order to
justify a right to recover, a plaintiff . . . must prove by a preponderance
of the evidence, not only that the negligence of the attorney defendant
caused him harm, but also that he is innocent of the crime charged’’);
Rodriguez v. Nielsen, 259 Neb. 264, 273,
609 N.W.2d 368 (2000) (‘‘[w]e
therefore hold that a convicted criminal who files a legal malpractice claim
against his or her defense counsel must allege and prove that he or she is
innocent of the underlying crime’’); Morgano v. Smith, 110 Nev. 1025, 1029,
879 P.2d 735 (1994) (‘‘to prevail at trial, the plaintiff must prove actual
innocence of the underlying charge’’); Mahoney v. Shaheen, Cappiello,
Stein & Gordon, P.A., 143 N.H. 491, 496,
727 A.2d 996 (1999) (‘‘It is not
sufficient for a [plaintiff] 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 [plaintiff] can establish
that he or she is, in fact, innocent of the conduct underlying the criminal
charge.’’ (Emphasis omitted.)); Carmel v. Lunney, 70 N.Y.2d 169, 173,
511
N.E.2d 1126,
518 N.Y.S.2d 605 (1987) (‘‘[t]o state a cause of action for legal
malpractice arising from negligent representation in a criminal proceeding,
plaintiff must allege his innocence or a colorable claim of innocence of the
underlying offense’’); Bailey v. Tucker, 533 Pa. 237, 247,
621 A.2d 108 (1993)
(‘‘[i]f a person is found guilty of a crime, and that person is indeed innocent
of any degree of that crime, and it is established that the wrongful conviction
was proximately caused by counsel’s gross dereliction in his duty to represent the defendant, only then will the defendant be able to collect monetary damages’’).
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practice claim. Some states employ the exoneration rule
in a way that does not require a plaintiff to demonstrate
actual innocence but allows the defendant in the criminal malpractice action to raise the actual guilt of the
plaintiff as an affirmative defense.11
Many jurisdictions justify adopting the exoneration
rule on the ground that it is not unfair to require that
the plaintiff first obtain relief from the judgment of
conviction precisely because the criminally convicted
person, unlike a plaintiff alleging malpractice in an
underlying civil case, has other mechanisms to obtain
redress for the incompetence of counsel, namely, a
claim of ineffective assistance of counsel through habeas
actions available at both the state and federal level.
See, e.g., Winniczek v. Nagelberg, 394 F.3d 505, 507
(7th Cir. 2005) (‘‘[a] criminal defendant can establish
ineffective assistance of counsel, the counterpart to malpractice’’). These courts reason that, without exoneration, the criminal conviction is a determination by the
criminal court that the cause of the imprisonment is the
plaintiff’s criminal wrongdoing, not the negligence of his
or her attorney.12 Requiring a plaintiff to obtain appellate or postconviction relief as an element of his or her
criminal malpractice claim demonstrates that, at the
very least, the plaintiff is legally innocent and any con-
11
See Shaw v. State, Dept. of Administration, 861 P.2d 566, 572 (Alaska
1993) (‘‘[r]ather than require the plaintiff to prove his actual innocence in
order to succeed, we hold that the defendant may raise the issue of the
plaintiff’s actual guilt as an affirmative defense’’). In a similar vein, some
courts allow malpractice cases to proceed without exoneration but require
proof of actual innocence at trial. See, e.g., Rodriguez v. Nielsen, 259 Neb.
264, 273,
609 N.W.2d 368 (2000); Gaylor v. Jeffco,
160 N.H. 367, 369–71,
999
A.2d 290 (2010), citing Mahoney v. Shaheen, Cappiello, Stein & Gordon,
P.A., 143 N.H. 491,
727 A.2d 996 (1999).
12
Not all courts that have adopted the exoneration rule apply it to a
plaintiff who has pleaded guilty, rather than having been adjudicated guilty
after a trial. See, e.g., Mrozek v. Intra Financial Corp., 281 Wis. 2d 448,
467–68, 699 N.W.2d 54 (2005) (rejecting idea that canvass for guilty plea
was akin to adjudication on merits).
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viction is not the result of the plaintiff’s own criminal
wrongdoing, but of the negligence of his or her attorney.13
Another closely related rationale for the rule is that
it prevents collateral attacks on a judgment of conviction in another court. See, e.g., Gaines v. Manson, 194
Conn. 510, 516,
481 A.2d 1084 (1984) (explaining that,
‘‘[a]lthough collateral attacks on criminal judgments are
generally disfavored, the writ of habeas corpus holds
an honored position in our jurisprudence . . . [as] a
bulwark against convictions that violate fundamental
fairness’’ (internal quotation marks omitted)). Because
a plaintiff in a criminal malpractice action must demonstrate that, in the absence of his or her attorney’s negligence, he or she would not have been convicted, the
civil action acts as a collateral attack on the criminal
conviction. Therefore, most courts have concluded that,
‘‘by operation of the doctrine of collateral estoppel, a
13
Many courts rely on this same rationale for imposing the more stringent
actual innocence requirement, as well. As the Supreme Judicial Court of
Massachusetts has explained, ‘‘[w]hen a plaintiff is a former criminal defendant claiming that his or her defense attorney negligently defended the
plaintiff against a criminal charge, [t]he causal requirement between the
lawyer’s negligence and damage then becomes twofold . . . . The plaintiff
must prove by a preponderance of the evidence, not only that the negligence
of the attorney defendant caused [the plaintiff] harm, but also that [the
plaintiff] is innocent of the crime charged. . . . Thus, the attorney’s negligence is not the cause of the former client’s injury as a matter of law, unless
the plaintiff former client proves that he [or she] did not commit the crime.’’
(Citations omitted; internal quotation marks omitted.) Correia v. Fagan,
452 Mass. 120, 127,
891 N.E.2d 227 (2008). In other words, ‘‘[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.’’ Ang v. Martin, 154 Wn. 2d 477, 485,
114 P.3d 637 (2005). These courts
explain that the purpose behind our tort law does not support permitting
a person who is guilty of a crime to profit from his or her own wrongdoing.
‘‘Only an innocent person wrongly convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus
between the malpractice and palpable harm is sufficient to warrant a civil
action, however inadequate, to redress the loss.’’ Wiley v. San Diego, 19
Cal. 4th 532, 539,
966 P.2d 883,
79 Cal. Rptr. 2d 672 (1998).
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Cooke v. Williams
valid criminal conviction acts as a bar to overturning
that conviction in a civil damages suit.’’ Levine v. Kling,
123 F.3d 580, 583 (7th Cir. 1997); accord Trigg v.
Farese,
supra,266 So. 3d 622. Moreover, because other avenues
of relief—both direct and collateral—are available to
criminally convicted persons, allowing such plaintiffs to
challenge the propriety of their convictions in a criminal
malpractice action after they have been unsuccessful
in challenging their convictions through direct appeals
or habeas corpus proceedings would allow challenges
to the correctness of judgments of other courts and
conflict with the well established doctrine of collateral
estoppel. Put differently, if individuals with criminal
convictions are permitted to bring claims of criminal
malpractice without having to demonstrate that they
have obtained appellate or postconviction relief, they
can essentially take another bite of the apple and ask
the civil court to weigh in on whether their convictions
were caused by the negligence of their lawyers, even
if habeas review has resulted in the consideration of
that very issue and a finding of no merit. Indeed, the
rationale of the United States Supreme Court in Heck
supports precluding such a scenario.
Specifically, the court in Heck explained that, in a
claim of malicious prosecution, requiring invalidation
of the underlying conviction ‘‘avoids parallel litigation
over the issues of probable cause and guilt . . . and it
precludes the possibility of the [plaintiff’s] . . . succeeding in the tort action after having been convicted
in the underlying criminal prosecution, in contravention
of a strong judicial policy against the creation of two
conflicting resolutions arising out of the same or identical transaction. . . . Furthermore, to permit a convicted criminal defendant to proceed with a malicious
prosecution claim would permit a collateral attack on
the conviction through the vehicle of a civil suit.’’ (Citation omitted; internal quotation marks omitted.) Heck
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v. Humphrey, supra,512 U.S. 484. The United States
Supreme Court further explained that it believes that
‘‘the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions
that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement . . . . [Therefore] when a state prisoner seeks damages in a § 1983
[action], the [D]istrict [C]ourt must consider whether
a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.’’ (Footnotes omitted.) Id.,
486–87; see also Wiley v. San Diego, 19 Cal. 4th 532,
544,
966 P.2d 983,
79 Cal. Rptr. 2d 672 (1998) (requiring
exoneration as element of criminal malpractice action
is consistent with ‘‘a strong judicial policy against the
creation of two conflicting resolutions arising out of the
same or identical transaction’’ (internal quotation marks
omitted)). The inconsistency of the judgments would
sow doubt in the legitimacy of the criminal conviction.
Admittedly, there is an opposing view regarding whether
to impose an exoneration rule for criminally convicted
plaintiffs in criminal malpractice actions, and it is not
without some merit. A minority of courts that have
considered the issue have rejected the requirement of
appellate or postconviction relief and have chosen to
impose no additional elements in connection with criminal malpractice claims.14 The courts that have rejected
14
See, e.g., Molen v. Christian, 161 Idaho 577, 582,
388 P.3d 591 (2017)
(‘‘[a]ctual innocence is not an element of a criminal malpractice cause of
action’’); Gebhardt v. O’Rourke, 444 Mich. 535, 552,
510 N.W.2d 900 (1994)
(‘‘a cause of action for malpractice could well exist regardless of the outcome
of [postjudgment] proceedings’’ (internal quotation marks omitted)); Jepson
v. Stubbs, 555 S.W.2d 307, 313–14 (Mo. 1977) (explaining that, like plaintiff
in civil malpractice case, who would not be collaterally estopped from
bringing action by judgment that he was negligent, plaintiff in criminal
malpractice case would not be collaterally estopped from bringing action
by judgment of conviction); Duncan v. Campbell, 123 N.M. 181, 184–86, 936
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Cooke v. Williams
the exoneration requirement have explained that there
is no reason to treat criminal and civil plaintiffs differently because both types of plaintiffs can be harmed
by their attorney’s malpractice. See, e.g., Duncan v.
Campbell, 123 N.M. 181, 186,
936 P.2d 863 (App.), cert.
denied, 123 N.M. 168,
936 P.2d 337 (1997).
Although we understand this argument for treating
the negligence of criminal defense or habeas counsel
in the same manner that we treat the negligence of
civil counsel, we find the minority view unpersuasive
because it does not account for the real differences
between civil and criminal cases. These jurisdictions
do not adequately consider the important policy reasons
underlying the exoneration requirement, in particular,
the substantial harm that may result from an inconsistent tort judgment casting doubt on the validity of a
criminal conviction that has not been vacated or reversed
through the established mechanisms of postconviction
relief that are specifically intended to safeguard the
integrity of criminal convictions in our system of justice.
We recognize that there is an argument that it is unfair
to require someone whose conviction is caused by the
negligence of his or her criminal defense or habeas counsel
to obtain appellate or postconviction relief before seeking damages for criminal malpractice, particularly when
the negligence is extreme. We do not take this concern
lightly. We are confident, however, that the substantial
protections already in place in our criminal justice system—both direct appellate and collateral relief—adequately ensure that these types of wrongs would be identified and addressed, particularly in light of the right to
appellate and postconviction representation. AccordP.2d 863 (App.) (rejecting reasoning behind exoneration rule), cert. denied,
123 N.M. 168,
936 P.2d 337 (1997); Krahn v. Kinney,
43 Ohio St. 3d 103,
106,
538 N.E.2d 1058 (1989) (rejecting rule that plaintiff must allege reversal
of his conviction to state cause of action for criminal malpractice).
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ingly, we are not persuaded that this is a reason not to
adopt the exoneration rule.
Having considered these various opinions and the
policies that underlie both the majority position and
the minority position, we find the majority position
more persuasive. The main reasons for adopting this
approach are interrelated: first, the judicial policy against
inconsistent judgments arising out of the same transaction; and, second, the elaborate remedial system embodied in Connecticut’s habeas laws providing comprehensive and robust postconviction procedures intended to
address, among other things, allegations that a criminal
conviction was the result of the ineffective assistance
of criminal defense counsel. Specifically, the legislature
has created a statutory entitlement to counsel in ‘‘any
habeas corpus proceeding arising from a criminal matter . . . .’’ General Statutes § 51-296 (a). This statutory
right includes the right to ‘‘ ‘effective and competent’ ’’
habeas counsel. Lozada v. Warden, 223 Conn. 834, 838–
39, 613 A.2d 818 (1992). Connecticut takes that statutory
right so seriously that habeas petitioners in this state are
afforded the opportunity to challenge their convictions
through successive petitions based on inadequate performance by habeas counsel. See, e.g., Kaddah v. Commissioner of Correction, 324 Conn. 548, 559,
153 A.3d
1233 (2017) (‘‘a third habeas petition is available as a
matter of fundamental fairness to vindicate the statutory right under § 51-296 (a) to competent counsel in
litigating a second habeas petition’’).
We are confident that Connecticut’s rights to appeal
and to postconviction proceedings, along with the availability of federal habeas remedies, provide an efficient
structure for obtaining relief from a criminal conviction
or the denial of habeas relief caused by the negligence of
counsel. Accordingly, the protections afforded to criminal
defendants to challenge their convictions through the
habeas process in Connecticut lend even more support
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to our adoption of the exoneration rule for claims of
criminal malpractice.
In fact, the elaborate and comprehensive nature of
our criminal justice system’s scheme to address convictions resulting from negligent lawyers ‘‘also appears to
establish something else, [namely], that it is the public
policy of this state to treat any person who has been
convicted of [a] criminal offense as validly convicted
unless and until the person’s conviction has been reversed,
whether on appeal or through [postconviction] relief, or
the person otherwise has been exonerated. Any policy
choice that [the] court might make concerning when a
person [who has been convicted of a crime] . . . should
be deemed to have been harmed by legal malpractice
on the part of the person’s criminal defense counsel
should respect, and not hinder, the valid policy choices
already made by the legislature. Respecting the legislature’s comprehensive criminal justice construct means,
at a minimum, that it is inappropriate to permit a person
who has been convicted of a criminal offense to assert
in the courts a claim for legal malpractice in connection
with that conviction unless and until the person has
challenged successfully the conviction through the direct
appeal or [postconviction] processes [provided by state
law] . . . .’’ Stevens v. Bispham, supra, 316 Or. 230–31.
Accordingly, we now hold that, when proof of a criminal malpractice claim requires a plaintiff to prove that
the attorney’s negligence was a proximate cause of the
underlying criminal conviction, the claim is insufficient
as a matter of law unless the plaintiff has obtained
appellate or postconviction relief for the underlying conviction. Having adopted the exoneration rule, we now
must decide which version of that rule will best serve
the interests that we have articulated, i.e., whether it
is adequate to require that the would-be plaintiff must
first obtain appellate or postconviction relief overturning the conviction, or must also demonstrate actual
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innocence, as some courts require. Because of the procedural posture of this case, in which the plaintiff has
not even pleaded that he has obtained appellate or
postconviction relief for his underlying criminal conviction, the issue of whether we will not only require exoneration, but also that a plaintiff prove his or her actual
innocence, is not necessary to our resolution of this
appeal. Therefore, we save for another day the question
of whether to adopt the actual innocence rule.15
Importantly, notwithstanding our adoption of the
exoneration rule, it should be clear that, if the plaintiff’s
criminal malpractice claim does not require findings
that would undermine the validity of the underlying
conviction, our holding today does not mean that such
a claim would be barred for lack of exoneration. See,
e.g., Cortez v. Gindhart, 435 N.J. Super. 589, 603,
90
A.3d 653 (App. Div. 2014) (concluding that criminal
malpractice claim did not require proof of exoneration
when allegation did not depend on invalidity of plaintiff’s conviction or his admission of guilt), cert. denied,
220 N.J. 269,
105 A.3d 1102 (2015). Indeed, the Appellate
Court correctly concluded that the plaintiff’s claim of
fraud in the present case could proceed; see Cooke v.
Williams, supra, 206 Conn. App. 177; and that claim is
not the subject of this appeal. Such claims do not
directly or indirectly challenge the validity of the conviction and, thus, are not subject to the exoneration rule.
In the present case, the only claim of criminal malpractice before this court relates to the alleged professional negligence in connection with the defendants’
representation of the plaintiff in his habeas proceeding.
15
We recognize that there are concerns regarding the applicability of the
statute of limitations to claims of criminal malpractice. See General Statutes
§ 52-577 (three year statute of repose). We also appreciate Justice McDonald’s effort to highlight those concerns. Because those issues were not raised
and are thus not at issue in this appeal, however, we leave resolution of
those concerns for another day.
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The plaintiff was not successful in that habeas action
and has unsuccessfully challenged his conviction through
direct appeals. See Cooke v. Commissioner of Correction, 194 Conn. App. 807, 810,
222 A.3d 1000 (2019),
cert. denied, 335 Conn. 911,
228 A.3d 1041 (2020); State
v. Cooke, supra,134 Conn. App. 574. The plaintiff is
currently challenging his conviction in yet another
habeas action that is scheduled for trial later this year.
In his criminal malpractice action at issue here, the
plaintiff alleges that the defendants’ failures resulted
in his inability to prove ineffective assistance of his
trial counsel.
Therefore, to prove that the defendants’ conduct was
the proximate cause of the plaintiff’s harm, namely, the
denial of his habeas petition and continued incarceration, the plaintiff necessarily would have to prove that
the defendants’ negligence was a substantial cause of
his conviction and that he probably would have prevailed on his habeas petition if the negligence had not
occurred. Because the plaintiff has not obtained any
appellate or postconviction relief, we conclude that the
plaintiff’s claim of criminal malpractice fails to state a
cognizable claim of criminal malpractice.
To the extent that the plaintiff asserts that, even if
we adopt the exoneration rule, it should not apply to
his claim of criminal malpractice because he is alleging
that his habeas counsel, instead of defense counsel in
his criminal case, committed malpractice, we disagree.
Instead of focusing on whether the claim of criminal
malpractice is brought against trial, appellate, or habeas
counsel, the focus of whether the exoneration rule
applies is on whether the claim of criminal malpractice
challenges the validity of the underlying conviction. As
the Appellate Court aptly explained: ‘‘In his amended
complaint, the plaintiff alleges that the defendants, in
violation of their duties, neglected to prosecute his
habeas petition fully and properly because the ‘aspects
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of the case that were investigated were misused by the
defendants due to failures to comprehend the requisite
law, facts and issues, and to have any coherent trial
strategy,’ the ‘defendants failed to adequately prepare
the plaintiff for trial,’ the ‘defendants failed to develop
evidence in support of the habeas case,’ and the ‘defendants failed to properly prepare and present court documents, [including] . . . motions, posttrial briefs, and
postjudgment remedies.’ He further alleges that the
defendants’ failures ‘in investigation and comprehension of the facts of the case yielded a failure to present
and prove prejudice’ pursuant to Strickland v. Wash-
ington, supra,466 U.S. 668. These allegations clearly
implicate the sufficiency of the defendants’ representation in the habeas proceedings and, to prove these allegations [in a negligence case], the plaintiff presumably
would have to demonstrate that he would not have
sustained an injury of continued incarceration had professional negligence not occurred. . . . The allegations
in the plaintiff’s legal malpractice claim thus necessarily
imply the invalidity of the plaintiff’s conviction.’’ (Citation omitted.) Cooke v. Williams, supra, 206 Conn. App.
163. Given that the plaintiff’s claim of criminal malpractice necessarily challenges the validity of his underlying
conviction, his claim fails for failure to plead and prove
that he has obtained appellate or postconviction relief
from his criminal conviction.
Having adopted the exoneration rule today and
explained that it is not an issue of justiciability but,
instead, requires an additional element to be alleged
and proven in a cause of action for criminal malpractice,
we conclude that the plaintiff’s claim of criminal malpractice should not have been the subject of a motion
to dismiss, but was more properly the subject of a
motion to strike. Compare Practice Book § 10-30 (a)
(‘‘[a] motion to dismiss shall be used to assert . . . lack
of jurisdiction over the subject matter’’), with Practice
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Cooke v. Williams
Book § 10-39 (a) (‘‘[a] motion to strike shall be used
whenever any party wishes to contest . . . the legal
sufficiency of the allegations of any complaint . . . or
of any one or more counts thereof, to state a claim
upon which relief can be granted’’). Therefore, we conclude as a matter of form that the Appellate Court
improperly affirmed the judgment of the trial court dismissing the plaintiff’s claim of criminal malpractice for
lack of subject matter jurisdiction.
The judgment of the Appellate Court is reversed with
respect to the plaintiff’s claim of criminal malpractice
and the case is remanded to that court with direction
to remand to the trial court with direction to deny the
defendants’ motion to dismiss and for further proceedings consistent with this opinion; the judgment of the
Appellate Court is affirmed in all other respects.
In this opinion the other justices concurred.
