Losing Ineffective Assistance Claim Bars Malpractice Suit

A Delaware Superior Court held that a legal malpractice claim was barred by both the statute of limitations and on the merits.

The convicted plaintiff had raised the claims in collateral attack of the conviction.

Here, the Plaintiff filed this suit more than four years after he first raised the identical allegations against his attorney. Accordingly, there is no latent discovery of an alleged fraud that would somehow extend or toll the statute of limitations. Because all facts that plaintiff is alleging in this case were known to him more than three years prior to the filing of this action, the statute of limitations period has expired and this action must be dismissed with prejudice.

The matter is also not cognizable because Plaintiff sought review of these identical issues in his motion to withdraw his guilty plea in 2011, which was denied by the Court. Germane to this issue is the Delaware Supreme Court’s holding in Rose v. Modica which provided that

[t]he standards for proving ineffective assistance of counsel in a criminal proceeding are equivalent to proving legal malpractice in a civil proceeding. If there is no claim against counsel in a criminal case, there is also no civil claim against counsel for legal malpractice.

In Rose, the Supreme Court held that when a Defendant litigates an ineffective assistance of counsel claim in the criminal context and does not prevail, a Defendant is collaterally estopped from raising the same issues again in a civil suit.6 Dismissal of any such claims is warranted on that basis. Here, the Plaintiff fully litigated the identical issues four years ago. Plaintiff is barred from once again litigating the issue of whether his counsel’s representation was inadequate.

(Mike Frisch)