Ellis J. Burnett v. Daryl M. South, Slip Copy, 2006 WL 4497729 (Tenn.Ct.App. 2007)

Brief Summary
The court held that a criminal defendant who wished to sue his attorney for legal malpractice following a conviction could do so before obtaining relief from the conviction in order to avoid the “Catch 22” situation posed by the one-year statute of limitations for legal malpractice actions. The case may then be stayed to see whether the legal malpractice plaintiff is able to obtain relief from the conviction.

Complete Summary
Ellis Burnett, who was indicted for aggravated arson, was initially convicted but then obtained a new trial. Mr. Burnett then hired Daryl South to represent him in the second trial, where he was again convicted. He instructed Mr. South to appeal on the same issue that was successfully used after his first conviction, but Mr. South declined to do so. The appellate brief in the second criminal appeal was filed on June 22, 2204. On September 3, 2004, and prior to any appellate decision in the criminal case, Mr. Burnett filed a legal malpractice action against Mr. South. Mr. South moved for dismissal based on Tenn. R.Civ.P.12.02(6) for failure to state a claim upon which relief could be granted. The trial court granted the dismissal based on the failure to obtain post-conviction relief and this appeal followed. Id. at *1.

Under Tennessee law, a plaintiff in a malpractice action based on representation of a client in a criminal case must show that he obtained relief in a final post-conviction judgment. See Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn.2001). The court here noted, however, that the Gibson court “did not make the post-conviction element a prerequisite to the commencement of a legal malpractice action that arose from representation in a criminal proceeding.” 2006 WL 4497729 at *2. The criminal defendant client was thus in a potentially untenable position because of the relatively short one-year statute of limitations for legal malpractice, which accrues when the plaintiff “knows, or in the exercise of reasonable care and diligence should know, that an injury has been sustained as a result of wrongful or tortious conduct by the defendants.” Id. at *2, citing John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.1998). A plaintiff may realize he has a cause of action against the attorney before he can file or obtain a post-conviction ruling. The court concluded that in those instances in which the defendant lawyer could not otherwise establish his non-liability, the only way out of this potential “Catch 22” was to keep the legal malpractice claim pending at the trial court level for as long as it takes to resolve the matter of post-conviction relief. Since Mr. Burnett’s action was dismissed solely due to the failure to establish post-conviction relief, the dismissal was reversed.

Significance of Case
The court correctly noted that the combination of a strictly construed one-year statute of limitations and a requirement of post-conviction relief could conceivably bar the courthouse doors to former clients with meritorious claims. Whether it would have been better to hold that such actions do not accrue until post-conviction relief is obtained rather than to hold that they can be filed early and then held in suspension is, of course, a separate question.

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