Powell v. Associated Counsel for the Accused, 106 P.3d 271 ( Wash. App. 2005)

Summary
Clint Powell pleaded guilty to solicitation to deliver material in lieu of a controlled substance, in violation of RCW 69.50.401(c). This offense is a gross misdemeanor, for which the maximum term of confinement is one year. When Mr. Powell was sentenced, however, he erroneously received a Class C felony prison sentence of 38.25 months of confinement. Upon discovering the error, Mr. Powell filed a personal restraint petition, which was granted by the Washington Supreme Court because the trial court had imposed a sentence beyond its authority. The Supreme Court remanded the case for re-sentencing, but by the time Mr. Powell was released, he had spent more than 20 months in prison.

After his release, Mr. Powell filed a complaint against Associated Counsel in which he alleged legal malpractice and claimed damages for the amount of time he was incarcerated in excess of the 12 months allowed by law. Associated Counsel moved to dismiss under CR 12(b)(6), on the grounds that Mr. Powell could not maintain a claim for legal malpractice because he failed to allege and could not prove his innocence as required by Falkner v. Foshaug, supra. The trial court agreed and granted the motion, dismissing the complaint with prejudice.

In Falkner v. Foshaug, the Washington Court of Appeals had held that, in addition to the elements of a civil legal malpractice claim, a civil plaintiff/criminal defendant seeking to sue criminal defense counsel for legal malpractice must, in addition to the other legal malpractice tort requirements: (1) establish post-conviction relief, and (2) demonstrate his or her innocence by a preponderance of the evidence. Mr. Powell argued that Falkner’s innocence requirement did not apply to him because he was not contending that he was innocent. Associated Counsel argued that, because he had pled guilty, Mr. Powell’s remedy should be limited to those available within the criminal justice system, such as the personal restraint petition, which led to his release.

The Court of Appeals found that the criminal justice system had not provided Mr. Powell with “what competent representation should have afforded in the first instance.” 106 P.3d at 274.

Because Mr. Powell had served substantially more time than the trial court had been authorized to impose, the Court held that application of the innocence requirement would not serve the public policy interests that fostered the innocence requirement. Finding that Mr. Powell’s situation was more akin to that of an innocent person wrongfully convicted than that of a guilty person seeking to take advantage of his or her own criminal acts, the Court reversed and remanded the case for reinstatement of the legal malpractice claim.

Significance of the Case
It is difficult to argue with the logic of this decision; competent criminal defense counsel must not allow their clients to be sentenced beyond a clearly applicable maximum sentence and must be prepared to respond in damages if they do so. The case also suggests, however, that the actual innocence requirement in criminal legal malpractice cases may be less sacrosanct than many lawyers had believed.