2005-290 ROBERT THERRIEN v. MARK F. SULLIVAN

action against his or her defense counsel accrue? 143 N.H. 491 (1999), when does a criminal defendant’s cause of see, e.g., Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 1. In the context of a civil action for criminal legal malpractice,

certified to us the following questions of law: States District Court for the District of New Hampshire (McAuliffe, C.J.) BRODERICK, C.J. Pursuant to Supreme Court Rule 34, the United

the defendant. Kissinger, Jr. and Richard C. Bell, Jr. on the brief, and Mr. Kissinger orally), for Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (John C.

orally), for the plaintiff. Errors may be reported by E-mail at the following address: Desfosses Law Firm, of Portsmouth (Sven D. Wiberg on the brief and

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-290 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial U.S. District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as prison.

p. 2 charges. 2

family was living in Maine. Therrien was acquitted of the Maine charges. trial court’s ruling precluding the introduction of evidence of his acquittal on tried for other alleged sexual assaults committed against the victim while the assault and was sentenced to serve seven and one-half to fifteen years in assaults in Maine amounted to harmless error. In March of 1997, Therrien was convicted of aggravated felonious sexual testified that Therrien had abused the victim until she was thirteen years old. about multiple incidents of uncharged abuse.

permitting him to introduce evidence that he had been acquitted of those we need not address the second question. underlying criminal conviction. In light of our response to the first question, until the defendant obtained direct or collateral relief from his or her

concluded that Therrien failed to preserve for appeal his objections to: (1) the with that assault, but before he was brought to trial in New Hampshire, he was Id. at 436. In addition, we conviction, concluding that the victim’s testimony about the previous sexual

jury was allowed to hear testimony from the victim’s social worker, who appeal that the trial court erred in allowing the victim’s therapist to testify

State v. Therrien, 144 N.H. 433, 434 (1999). He also argued on

including the alleged sexual assaults that occurred in Maine, without asserted that the trial court erred in admitting evidence of other bad acts, On direct appeal to this court, Therrien, represented by different counsel, criminal legal malpractice claims; thus the limitation period would not accrue

victim informed her mother about the alleged assault. Therrien was charged (thereby avoiding estoppel bars to proving actual innocence)?

acquitted of those charges. In addition, over defense counsel’s objection, the counsel was not, however, permitted to introduce evidence that Therrien was evidence of the alleged sexual assaults that occurred in Maine. Defense At Therrien’s later trial in New Hampshire, the jury was allowed to hear

Hampshire follows the “bright-line” or “one track” approach with respect to

fellatio on him. Soon thereafter, the family moved to Maine. In 1995, the Portsmouth, Robert Therrien allegedly forced the six-year-old victim to perform collateral relief from his or her underlying criminal conviction The district court’s order provides the following facts. While living in limitations period tolled until the criminal defendant obtains negligence and the resulting harm, is the pertinent state

For the reasons stated below, we answer the first question that New

upon the criminal defendant’s discovery of the attorney’s alleged 2. If the cause of action for criminal legal malpractice accrues the breach. p. 3 that client, (2) a breach of that duty, and (3) resultant harm legally caused by

establishes a three-year limitation period for all personal injury actions. reasonable professional care, skill and knowledge in providing legal services to

in fact, innocent of the conduct underlying the criminal charge.

the applicable limitation period. professional duty, damages occur as a result, and the claimant knows or malpractice in a civil proceeding accrues when an attorney breaches a preponderance of the evidence, actual innocence. Gordon v. Home Ins. Co., 143 N.H. 35, 40 (1998). A cause of action for legal necessary for such a claim are present. See Shaheen, Cappiello, Stein & thereby triggering the running of the three-year statute, once all the elements Furbush v. McKittrick, 149 N.H. 426, 430 (2003). A cause of action arises,

An action for malpractice is governed by RSA 508:4 (1997), which client relationship, which triggers a duty on the part of the attorney to exercise

damages will remain closed unless a claimant can establish that he or she is, would not have been established. Id. As a matter of law, the gateway to Sullivan moved to dismiss on the grounds that Therrien’s action is barred by sufficient for a claimant to prove that if counsel had acted differently, legal guilt proximately caused his allegedly wrongful conviction and incarceration. Id. at 496. It is not conduct an evidentiary hearing on the matter prior to its ruling. charges brought against him and that Sullivan’s deficient representation requires identical proof and, in addition, requires the claimant to prove, by a representation. We vacated that holding because the trial court failed to 491, 495-96 (1999). A criminal malpractice action alleging false conviction based upon its finding that he had been provided constitutionally adequate Mahoney v. Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H.

In this State, a civil malpractice action requires proof of (1) an attorney-

former attorney, Mark Sullivan, claiming that he is actually innocent of the On January 28, 2004, Therrien filed his diversity action against his his first trial. Therrien’s motion for a new trial was denied by the trial court served approximately five years in prison. State, however, declined to reprosecute. By that time, Therrien had already vacated Therrien’s conviction and granted his motion for a new trial. The Therrien, No. 96-S-541 (N.H. Super. Ct. May 7, 2002). Accordingly, the court found that counsel provided constitutionally deficient representation. State v. transferred to a second judge, an evidentiary hearing was held, and the court Robert Therrien, No. 2000-579 (N.H. Oct. 1, 2001). The case was then

court, claiming that he had been denied effective assistance of counsel during Following our decision, Therrien sought collateral relief in the State trial

Id. at 437-38. the Maine charges; and (2) the introduction of the social worker’s testimony. outweighs the policy of preventing stale claims.

p. 4 attack a valid criminal conviction in a subsequent civil proceeding this case, the policy against allowing a defendant to collaterally the judicial system to husband its limited resources. Therefore, in 4

attorneys for legal malpractice he must obtain post-conviction relief.”),

cannot withstand a Rule 12.02(e) motion to dismiss.

fundamental policy of the statute of limitations, which is to permit

denied, 540 U.S. 1090, 1090 (2003); Adkins v. Dixon, 482 S.E.2d 797, 801 (Va.

911, 921 (Kan.) (“We hold that before [a criminal defendant] may sue his Id. at 745-46 (citation and quotation omitted); see Canaan v. Bartee, 72 P.3d as defined in cause of action based on a defense counsel’s ineffective assistance

likely never be overturned, our decision comports with another plaintiff’s criminal conviction has not been overturned and will . . . [B]y precluding claims from proceeding in which a . . . . legal malpractice accrues. criminal defendant to obtain post-conviction relief before a cause of action for the so-called “bright-line” or “one-track” approach that requires a convicted reasoning of the “bright-line” or “one track” approach. Because the elements as long as a valid criminal conviction is in place a legal malpractice

The Minnesota Court reasoned that to dismiss. See Noske v. Friedberg, 670 N.W.2d 740, 744-45 (Minn. 2003). underlying conviction, a claim for criminal malpractice cannot survive a motion which held that until appellate or collateral relief is obtained with regard to the We are persuaded by the reasoning of the Supreme Court of Minnesota,

element of criminal legal malpractice. conviction, we further hold that post-conviction relief is also required as an

Mahoney would be present at the time of the defendant’s

considered it, there is a decided lack of agreement. Many jurisdictions follow actual innocence, and reviewing case law from other jurisdictions, we adopt the Mahoney, which sets out the elements for criminal legal malpractice, including County, 81 P.3d 463, 469-70 (Mont. 2003). After considering our decision in Morrison v. Goff, 91 P.3d 1050, 1055-58 (Colo. 2004); Ereth v. Cascade aware of his or her attorney’s negligence and the resulting injury. See, e.g., that a cause of action for malpractice accrues as soon as a defendant becomes 1999). Other courts, however, have adopted a “two-track approach,” holding P.2d 1358, 1360 (Alaska 1991); Steele v. Kehoe, 747 So. 2d 931, 933 (Fla.

in a criminal proceeding accrues. Among those jurisdictions which have We have not yet addressed when a cause of action for legal malpractice

249, 251-52 (1995). should know of the injury and its cause. See id; Conrad v. Hazen, 140 N.H. would squander scarce judicial resources. p. 5 issue of post-conviction relief in the criminal matter is settled

post-conviction relief.” We reject this argument. As the court in simultaneously moving to stay the malpractice action while the plaintiff seeks outweighs the policy of preventing stale claims. such circumstances from filing the action within the statute of limitations, and collaterally attack a valid criminal conviction in a subsequent civil proceeding

malpractice action.” record will have been made of the actions which form the substance of the later criminal matter and then staying the malpractice action until the during litigation, the dangers associated with delay are lessened because a

repose to liability that otherwise would linger on indefinitely.” conviction is in place, a legal malpractice cause of action based on a defense principles of the statute of limitations is to “eliminate stale claims and grant the court in Our holding today is a recognition that as long as a valid criminal

without a remedy.” He argues that “there is nothing prohibiting the plaintiff in (Ariz. Ct. App. 1983). Accordingly, the policy against allowing a defendant to

malpractice action before obtaining post-conviction relief in the However, in cases such as this, “where [the] attorney’s malpractice occurs review; and collateral estoppel.”

We recognize, as the defendant argues, that one of the fundamental relief proceedings, or otherwise.”). Among the justifications for this approach, Id. at 744 n.3.

post-conviction relief “outlast the statute of limitations, the plaintiff is not

[A]llowing a criminal defendant-plaintiff to commence a legal not yet been exonerated; the existence of comprehensive post-conviction observed:

the criminal offense through reversal on direct appeal, through post-conviction breach, and causation, allege ‘harm’ in that the person has been exonerated of criminal defense counsel, the person must, in addition to alleging a duty, its The defendant contends that even when a plaintiff’s attempts to obtain

termination of the post-conviction proceeding.”); and brackets omitted). until that time and, thus, the statute of limitations does not begin to run until Noske, 670 N.W.2d at 745 (quotation, ellipsis,

causation and damages in a criminal malpractice case where the plaintiff has

Noske also noted: “equitable principles; the difficulties of proving

offense to bring an action for professional negligence against that person’s 556, 566 (Or. 1993) (“We hold that, in order for one convicted of a criminal

the conviction] is part of [plaintiff’s] cause of action, he has no right of action 1997) (“Since successful termination of [post-conviction collateral challenges to p. 6 6

relief. malpractice does not accrue until a criminal defendant receives post-conviction

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

motion to dismiss. Accordingly, we conclude that an action for criminal legal counsel’s ineffective assistance resulting in that conviction cannot withstand a