01-0751 Hicks v. Nunnery

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“Even in cases where the causal link between an attorney’s negligence and a client’s erroneous imprisonment is most obvious (such as where the attorney fails to bring a clearly meritorious motion to suppress evidence that establishes guilt, which the state could not prove without it), civil recovery by a guilty plaintiff is not warranted because of ‘the nature and function of the constitutional substructure of our criminal justice system.’… That is, such features of the criminal justice system as the state’s burden to prove guilt beyond a reasonable doubt, the exclusionary rule, and other constitutional protections are to safeguard against conviction of the wrongly accused and to vindicate fundamental values. They are not intended to confer any direct benefit outside the context of the criminal justice system. Thus, defense counsel’s negligent failure to utilize them to secure an acquittal or dismissal for a guilty defendant does not give rise to civil liability. …

“Because we are persuaded that public policy requires a plaintiff in Hicks’s position to prove he is innocent of the charges of which he was convicted in order to prevail on a claim of legal malpractice, we conclude that the trial court erred in instructing the jury that Hicks’s burden was to prove only that ‘but for [Nunnery’s] negligent acts or omissions, [Hicks] would not have been found guilty of the charges brought against him.’ Nunnery is thus entitled to a new trial at which Hicks must convince five-sixths of the civil jurors, by a preponderance of the evidence, that he did not commit the offenses of which he was convicted.”

DISSENTING OPINION: Dykman, J. “I would conclude that Nunnery had a duty to represent Harris competently. I would conclude that the jury was entitled to find that Nunnery breached that duty, and that the breach caused damages to Harris. And I would conclude that none of the policy factors found in Miller, 219 Wis. 2d at 264-65, and no other public policy reason required that Hicks’s complaint against Nunnery should be dismissed. Thus, unlike the majority, I would affirm Hicks’s judgment against Nunnery. That is why I respectfully dissent.”

Dist IV, Dane County, Ebert, J., Deininger, J.

Attorneys:

For Appellant: David J. Hase, Milwaukee; Stacy C. Gerber Ward, Milwaukee

For Respondent: Jeff Scott Olson, Madison