¶1concurring and dissenting.
¶2I concur, in part, in the result reached in the appeal of Clarence Bailey at No. 34 W.D. Appeal Docket 1987. Although I disagree that the cause of action accrued at the time *265of the termination of the attorney-client relationship, I agree that appellant Bailey’s allegations of negligence in his action for legal malpractice against Robert E. Tucker and Daniel M. Berger are time barred by the two-year statute of limitations applicable to negligence actions. I dissent, however, from the finding of the majority that Bailey is precluded from litigating that part of his complaint sounding in contract. I also dissent to the majority’s disposition of Gregory Trice’s appeal at 42 E.D. Appeal Docket 1987, as I find that his action for legal malpractice against Robert B. Mozenter is not time barred by either applicable statute of limitations.
¶3In addition to my disagreement with the majority’s analysis of the statute of limitations issue, I disagree with the majority’s use of a “reckless or wanton disregard of the defendant’s interest” standard in assessing the negligence of a criminal defense attorney in a malpractice action. Maj. op. at 248-50, 621 A.2d at 114. I will address these issues seriatim.
¶4With regard to the accrual of a cause of action for legal malpractice against a criminal defense attorney, I believe that such a cause of action accrues and the statute of limitations begins to run when a court’s order affirming the client’s contention of ineffectiveness becomes final.
¶5The majority has created a procedural quagmire by proposing that, where a conclusive determination of ineffectiveness has not yet been made, the defendant-attorney in the malpractice action “may interpose a preliminary objection on the grounds of demurrer,” and that the “trial court shall then reserve its ruling on said objection until the resolution of the post-conviction criminal proceedings.” Maj. op. at 251 n. 13, 621 A.2d at 115. Instead of facilitating the proper exercise of justice, the majority thwarts that goal and bogs down our already overburdened judicial system by clogging the courts and judge’s dockets with legal malpractice claims that lack a key element of the claim, i.e., the finding of ineffectiveness. In all likelihood, that key element will never exist, and such legal malpractice claims will languish in our judicial system for years awaiting resolution. This unnecessary and ridiculous expenditure of court time, space and resources serves only to pad the pockets of attorneys at the expense of our entire judicial system.
¶6This Court’s decision in appellant Bailey's underlying criminal case, which decision granted Bailey a new trial on the basis of trial counsel’s ineffectiveness, was entered on July 19, 1978. Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978). Bailey’s legal malpractice action was commenced by writ of summons on October 22, 1980. As the writ of summons was filed more than two years after our decision became final, I agree with the majority that Bailey's negligence claims are time barred. Those claims based upon breach of contract, however, are not barred as the applicable statute of limitations for such claims is six years. 42 Pa.C.S. § 5527. Thus, I would remand Bailey’s action in assumpsit to the Court of Common Pleas of Allegheny County for further proceedings. *267The Court of Appeals for the Third Circuit entered its decision granting appellant Trice a new trial on the basis of trial counsel’s ineffectiveness on August 11, 1982. United States v. Baynes, 687 F.2d 659 (3d Cir.1982). Trice filed his complaint for legal malpractice on August 9, 1984. Because Trice filed his civil action within two years of the date of the decision of the Court of Appeals, I would hold that his civil action is timely in its entirety and would remand the case to the Court of Common Pleas of Philadelphia County for further proceedings.
¶7With respect to the standard of care the majority has established as an element of a cause of action for legal malpractice against a criminal defense attorney, i.e., “reckless or wanton disregard of the defendant’s interest,” maj. op. at 250, 621 A.2d at 115, I dissent. This standard is so high that even gross negligence does not meet the majority’s standard of care, and in effect, for all practical purposes, there is no cause of action. I believe that the duty owed by a criminal defense attorney to his or her client is the same duty as that owed by the civil litigation attorney, i.e., reasonable and ordinary care and diligence. Of course, as always, this standard is applied and related to the context of the case involved. The context of a criminal trial is usually very different from that of a civil trial. Criminal trials are usually more emotional and more heavily charged because of the facts of the case, the alleged criminal behavior involved and the possibility of conviction.
¶8In advocating the reasonable and ordinary care and diligence standard, I am in agreement with the majority of other jurisdictions which have considered the issue. See McCord v. Bailey, 636 F.2d 606 (D.C.Cir.1980) (ineffectiveness standard of reasonable competence to be used in civil malpractice action against criminal defense attorney), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981); Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983) (standard of ordinary and reasonable level of skill, knowledge, care, attention, and prudence common to members of the legal profession in the community); Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984) *268(standard of reasonable and ordinary care and diligence, attorney to use best judgment and to exercise r easonable degree of learning, skill and experience ordinarily possessed by other attorneys in the community); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989) (same elements of proof for all legal malpractice actions whether arising from criminal or civil representation). See also Sincox v. Blackwell, 525 F.Supp. 96 (W.D.La.1981) (degree of care, skill, and diligence exercised by prudent practicing attorneys in the locality); and Sammons v. Rotroff, 653 S.W.2d 740 (Tenn.Ct.App.1983) (reasonable duty), cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165.
¶9Additionally, a client is a client is a client is a client, to paraphrase Gertrude Stein, and the majority is now treading upon rights of constitutional dimension in treating similarly situated litigants differently under the law. Accordingly, I believe that the majority gravely errs in establishing the “reckless or wanton disregard of the defendant’s interest” standard which applies only to criminal defendants.
¶10As I stated in Muhammad v. Strassburger, McKenna, Messer, Shilobod, and Gutnick, 526 Pa. 541, 554, 587 A.2d 1346,1352 (1991) (Larsen, J., dissenting), the majority is today declaring a “LAWYER’S HOLIDAY.” “If a doctor is negligent in saving a human life, the doctor pays. If a priest is negligent in saving the spirit of a human, the priest pays. But if a lawyer is negligent in advising his client ... the client pays.” Id. at 555, 587 A.2d at. 1352-53. Another special preference is being accorded to attorneys herein. While their clients serve time due to negligent representation, criminal defense attorneys will be able to hide behind a standard that is virtually impossible to meet.
¶11I do agree that if the plaintiff-client is guilty of the crime, there would not be a cause of action against the attorney as there would not be any damages.
¶12. The courts in other jurisdictions are not uniform in their treatment of this issue. See, e.g., Thomas v. Howard, 455 F.2d 228 (3d Cir.1972) (applying New Jersey law, cause of action accrues and statute of limitations begins to run when attorney-client relationship terminates); Hunt v. Bittman, 482 F.Supp. 1017 (D.D.C.1980) (cause of action accrues and statute of limitations begins to run when client suffers actual injury), aff'd, 652 F.2d 196 (D.C.Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 315, 70 L.Ed.2d 158 (1981); Henzel v. Fink, 340 So.2d 1262 (Fla.Dist.Ct.App.1976) (cause of action accrues and statute of limitations begins to run from time client discovered or through use of reasonable diligence should have discovered alleged negligence), cert. denied, 348 So.2d 948 (Fla.1977); and Mullins v. Belcher, 159 Ga.App. 520, 284 S.E.2d 35 (1981) (cause of action accrues and statute of limitations begins to run at the time of the occurrence of the negligent act).