2011 Winter, Pg. 54. Lex Loci.

• Author: By David W. Ruoff

New Hampshire Bar Journal

2011.

2011 Winter, Pg. 54.

Lex Loci

New Hampshire Bar JournalVolume 51, No. 2Winter 2011Lex LociBy David W. RuoffGaylor v. Jeffco, decided June 3, 2010, is a legal malpractice case. it is worth mentioning because it involves a claim of legal malpractice in the context of a criminal case. Mr. Gaylor was indicted for multiple counts of theft and tax evasion. He absconded during jury deliberations and was ultimately convicted and sentenced in asbsentia. While he was still a fugitive, he filed an appeal which was dismissed due to his fugitive status.

Eventually he was apprehended, extradited, and retained Portsmouth attorney Stephen Jeffco to pursue collateral attacks on his criminal convictions in both state and federal court. Jeffco filed motions with the New Hampshire Supreme Court to allow his original appeal to be reinstated. After the motions were denied, Jeffco filed a petition for writ of habeas corpus collaterally attacking his conviction in federal court. The petition was denied.(fn1)

The plaintiff filed his claim against his attorney in 2007 and alleged that he committed malpractice by failing to file state court pleadings in order to toll the one-year statute of limitations. The trial court dismissed the suit, finding that to prevail on a criminal legal malpractice claim, the plaintiff had to allege and prove his actual innocence to succeed -- and he had done neither. The Supreme Court agreed. After i read the opinion to my wife, she was elated to know that i - as one who regularly practices criminal defense - am now almost completely immune to malpractice claims.

in Gaylor v. Jeffco, the Court affirmed and expanded a very high burden for would-be plaintiffs to succeed in suing their former criminal defense attorneys. Under the previous common law, a former client suing for malpractice arising from representation during trial or a plea colloquy had to show 1) that the lawyer had a duty to use reasonable care, 2) that the lawyer breached the duty, 3) that the breach was the legal cause of harm to the plaintiff, and 4) that the plaintiff was actually innocent of the charges.(fn2) Until Gaylor, it was unclear whether this augmented standard (requiring proof of actual innocence) applied in cases where the criminal defense attorney represents a client in post-conviction proceedings. Now it does, but a word of warning is in order. The Court extended the "actual innocence" prong to post-conviction representation related to setting aside a conviction. it would not apply to post-conviction representation for proceedings such as a sentencing hearing.

While I understand the Court's logic in applying the "actual innocence standard," the adoption of such a standard does not promote the development of the attorney's duty to use reasonable care.. .especially if the client is guilty (or at least tells his/her attorney that he is). The obvious flaw in the "actual innocence" standard arises in cases in which a defense attorney -on behalf of a very guilty client facing a mountain of evidence - fails to litigate a winning dispositive motion (like statute of limitations or suppression) .(fn3)

Khater v. Sullivan, decided June 3, 2010, is noteworthy because the Court declined to adopt a new constitutional tort. The Court affirmed the rule that a plaintiff cannot sue for monetary relief based on a claim of a constitutional violation, particularly where a statutory remedy exists. The Khaters sued the town of Hudson for money damages after the town denied their application for land use permits. They claimed that the denial was based on racial discrimination in violation of the New Hampshire Constitution's equal protection clause, Part i Art. 12. The plaintiffs wanted to run a used car lot and the town declined their application for site plan approval.

The Supreme Court affirmed the suit's dismissal. While the Court acknowledged that it has the inherent power to create a constitutional tort in the form of a "damages remedy modeled on tort law", the Court reiterated a longstanding hesitation to create one here. The Court implicitly recognized that it defers to remedies created by the legislature. in this case, the Court pointed out that the plaintiffs had other, statutory, remedies that they could have sought. The plaintiffs could have appealed to the local zoning board of adjustment, then to the superior court. There are no shortcuts to a constitutional tort in New Hampshire.

Favazza v. Braley, decided June 3, 2010, concerns a "hotly" contested four-day landlord/tenant case tried in the Laconia District Court. The landlord/plaintiff was sued in the district court by her tenant for wrongful eviction. She lost and the tenant was awarded $41000. instead of prosecuting her appeal in the Supreme Court (she had filed a Notice of Appeal), she filed a petition for a new trial in the superior court. She argued that she was entitled to get a second bite at the apple under RSA 526:1, which says the superior court may grant a new trial in "any case."(fn4 )Her petition alleged that the tenants had perjured themselves before the district court, submitted forged trial exhibits and tampered with at least one witness. From the Supreme Court's opinion, it is apparent that the original district court trial was quite a rugby scrum. The district court noted that the facts were "'contested, hotly, to include claims of lying...