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Petitions for Review from the Superior
Court of the State of Alaska, Fourth Judicial
District, Fairbanks, Richard D. Savell,
Judge.
These petitions raise several questions arising out of

a legal malpractice action brought by a criminal
defendant

against his attorney. First, we address at what time
prejudgment

interest in a legal malpractice action brought against a
criminal

defense attorney begins to accrue. Second, we
address the

question whether innocence or actual guilt of the
plaintiff in

the legal malpractice action is relevant. If so, we must
further

decide who bears the burden of proof on the issue. We
address

these issues in turn.
I. FACTUAL AND PROCEDURAL BACKGROUND

The long and complex factual and procedural
background

in this case is set out in Shaw v. State, 816 P.2d 1358
(Alaska

1991) (Shaw I). We limit this opinion to summarizing the
dates

and events relevant to the questions raised by these
petitions:

(1) Shaw was convicted of two counts of burglary and two
counts

of larceny in 1973; (2) upon apprehension after
fleeing the

state, Shaw was sentenced for the 1973 convictions in
1980; (3)

on August 15, 1986, Shaw's convictions were set
aside as

"constitutionally defective;" and (4) Shaw filed a
legal

malpractice claim against his attorney and the Public
Defender's

office on January 13, 1988. Id. at 1359-60. Finally, in
Shaw I

we held that the statute of limitations as to legal
malpractice

arising out of criminal proceedings does not begin to run
until

after the criminal defendant obtains post-conviction
relief. Id.

at 1362.Subsequently both parties moved to establish the
law of

the case on different issues: Shaw moved for a statement
of law

regarding when prejudgment interest accrues, and the State
moved

to establish the law of the case concerning, among other
things,

the elements to be proven at trial and the accompanying
burdens

of proof.

In response to Shaw's motion, the superior court
found

that the legal malpractice cause of action accrued upon
Shaw's

obtaining post-conviction relief. Therefore, under AS
09.30.070,

prejudgment interest commences upon service of the
complaint. In

response to the State's motion, the superior court held
that, as

the State acknowledged both duty and breach of duty,
Shaw's only

burden at trial was to prove the proximate causal
connection

between his counsel's negligent defense at trial and his
claimed

damages. The superior court further ruled that at
trial the

State had the burden of proving, by a preponderance
of the

evidence, the affirmative defense that Shaw was actually
guilty

of the original charges.
Shaw petitioned for review of the court's ruling

concerning the time at which prejudgment interest accrues
and the

State petitioned for review of the ruling establishing the
law of

the case as to the parties' respective burdens at
trial. We

AFFIRM.

II. DISCUSSION1

A. At What Time Does Prejudgment Interest in a
Legal
Malpractice Action Brought Against a Criminal
Defense
Attorney Begin to Accrue?

In order to determine when prejudgment interest
begins

to accrue, we must determine when Shaw's cause of action
arose.

State v. Phillips, 470 P.2d 266, 274 (Alaska 1970) ("All
damages

. . . should carry interest from the time the cause of
action

accrues . . . ."). We have consistently held in the
context of

civil judgments that "a cause of action accrues when
all the

essential elements forming the basis for the
claim have

occurred." Lamoreux v. Langlotz, 757 P.2d 584, 585 (Alaska
1988)

(citations omitted). Thus, the question is when did
all the

essential elements forming the basis of Shaw's claim accrue.

In Shaw I, we held that "obtaining post-
conviction

relief is an element of legal malpractice in criminal
cases."

816 P.2d at 1360 n.2. It is clear, then, that all the
essential

elements of Shaw's legal malpractice claim did not accrue
until

he obtained post-conviction relief on August 15,
1986.2 In

regard to prejudgment interest, the legislature has
provided that

all causes of action that accrue after June 11, 1986 are
subject

to AS 09.30.070. Ch. 139, 9, SLA 1986. The statute
provides,

in part:

(b) Except when the court finds that
the parties have agreed otherwise,
prejudgment interest accrues from the day
process is served on the defendant or the day
the defendant received written notification
that an injury has occurred and that a claim
may be brought against the defendant for that
injury, whichever is earlier.

AS 09.30.070(b). As no written notice was provided
to the

defendant, prejudgment interest began to accrue on
January 15,

1988, when the complaint was served.

B. Is the Innocence of a Former Criminal Defendant Who
Sues His
Defense Attorney for Malpractice Relevant?

We have not previously addressed the relevance
of a

criminal defendant's innocence to that defendant's
subsequent

malpractice claim against his former defense attorney. A
survey

of case law from other states indicates that this
area of

criminal malpractice constitutes a small but growing
percentage

of legal malpractice cases. 2 Ronald E. Mallen &
Jeffrey M.

Smith, Legal Malpractice 21.1, at 284 n.4 (3d ed.
1989). In

cases that have addressed the issue of a criminal
defendant's

guilt, the vast majority of courts have held that
innocence or

the actual guilt3 of the criminal defendant is relevant.4
Before

deciding whether to join the majority of courts on this
issue, we

first address the question of whether the civil arena even
allows

such an inquiry to be made. We think that it does.
In so

holding, we base our decision on the different purposes and
goals

of the criminal and civil justice systems.
It is indisputable that a primary goal, perhaps the

paramount goal, of the criminal justice system is to
protect the

innocent accused against an erroneous conviction. Our
society

has made "a fundamental value determination . . . that it
is far

worse to convict an innocent man than to let a guilty
man go

free." In re Winship, 397 U.S. 358, 372 (1970)
(Harlan, J.,

concurring); see also State v. Alto, 589 P.2d 402, 406
(Alaska

1979) ("[P]lacing the burden of proof on the state
beyond a

reasonable doubt in criminal cases reflects our belief that
it is

worse tha[t] an innocent man be jailed than that a guilty
man go

free."). This value determination is evidenced by the
array of

protections provided an accused by the United States
Constitution

and the Alaska Constitution. When the state brings its
power as

a prosecuting authority to bear on an
individual, the

Constitutions protect the accused by imposing carefully
crafted

limitations5 on the state's ability to prosecute.6
Few would dispute that reliable factfinding is also a

significant goal of both the criminal and the civil
systems. In

both arenas, courts seek the truth concerning the
events in

dispute. In the criminal system, however, the goal of
reliable

factfinding and the goal of protecting the innocent
accused may

conflict.7

When these two goals conflict, it is the
goal of

reliable factfinding that must give way to the paramount
goal of

protecting the innocent accused. As Lafave and Israel
noted:

Reliable factfinding, as a goal in
itself, would seek to ensure equally the
accuracy of both guilty verdicts and
nonguilty verdicts. Protection of the
innocent, however, places greater priority on
the accuracy of the guilty verdict. It
reflects a desire to minimize the chance of
convicting an innocent person even at the
price of increasing the chance that a guilty
1 Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure

1.6(c), at 45 (1984).8

Thus, the criminal system resolves the conflict
between

protecting the innocent accused and reliable
factfinding by

choosing to err on the side of ensuring the accuracy of
guilty

verdicts. In order to ensure accuracy, the criminal
trial is

limited by the protections the Constitutions
provide to

determining the defendant's guilt beyond a reasonable
doubt.

Consequently, at times the determination of the truth
in a

particular case is subsumed in order to fulfill the
goal of

protecting the innocent.
person may escape conviction.
In the civil system, however, the same conflict does

not arise because the goal of protecting an innocent
accused is

no longer paramount. The protective barriers provided an
accused

by our state and federal case law and Constitutions are no
longer

applicable, and thus we are not confined to a
determination of

the plaintiff's guilt beyond a reasonable doubt.
However, as

noted above, the determination that the civil arena
allows

inquiry into innocence or the actual guilt of the
plaintiff does

not end our inquiry. Simply because we are not prevented
in the

civil system from determining innocence or the actual
guilt of

the plaintiff does not resolve the question of whether
innocence

or the actual guilt of the plaintiff is relevant in a
malpractice

suit against his former defense attorney. We conclude
that it

is.If a plaintiff in a criminal malpractice action against

his former defense attorney has engaged in the criminal
conduct

he was accused of in the criminal trial, public policy
prevents

recovery on his part. We have previously held that
civil

recovery should not be a tool for shifting an
individual's

responsibility for the individual's criminal
acts. This

principle is applicable to the case at hand.

In Adkinson v. Rossi Arms Co., 659 P.2d
1236, 1240

(Alaska 1983), we held that a plaintiff who had been
convicted of

manslaughter for killing a victim with a shotgun could not
bring

a tort action against the manufacturer and seller of the
gun for

personal losses suffered as a result of imprisonment
allegedly

resulting from a defect in the gun. We stated
that "allowing a

criminal defendant, who has been convicted of an
intentional

killing, to impose liability on others of the consequences
of his

own anti-social conduct runs counter to basic values
underlying

our criminal justice system." Id. We relied on Adkinson
in Lord

v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991), to hold
that a

drunken customer who was served alcohol by a bar in
violation of

the dram shop statute and who subsequently committed a
felony

could not recover from the bar for damages he suffered
as a

result of his imprisonment. Id. at 663.
Adkinson and Lord differ from the present case in that

both plaintiffs claimed that the defendants were in
some way

responsible for the criminal acts committed by the
plaintiffs,

whereas in a malpractice suit the plaintiff is not
claiming that

the attorney contributed to the plaintiff's criminal
act. The

cases are the same, however, in that the claimed
injury or

consequence is the same: The plaintiff claims that were
it not

for the negligent action of another, he would not
have been

subjected to imprisonment. As we did in Adkinson and
Lord, we

hold that if plaintiffs engaged in the criminal conduct
they are

accused of, then they alone should bear full
responsibility for

the consequences of their acts, including
imprisonment. Any

subsequent negligent conduct by a plaintiff's
attorney is

superseded by the greater culpability of the plaintiff's
criminal

conduct. Cf. Wilson v. City of Kotzebue, 627 P.2d
623, 631

(Alaska 1981) (holding that a plaintiff's intentional
conduct

that results in injury to himself will bar any recovery
against a

merely negligent defendant whose conduct also contributed
to the

plaintiff's injury).

In cases holding that innocence or the actual guilt of

the plaintiff is relevant, the majority of courts
place the

burden on the plaintiff to prove his actual innocence.
Although

we conclude that innocence or the actual guilt of the
plaintiff

is relevant, we decline to place the burden of proving
actual

innocence on the plaintiff. We have already burdened a
criminal

defendant bringing a malpractice action against his
defense

attorney by requiring the additional element of first
obtaining

post-conviction relief. Rather than require the
plaintiff to

prove his actual innocence in order to succeed, we hold
that the

defendant may raise the issue of the plaintiff's actual
guilt as

an affirmative defense.9 The attorney, or in this
case the

State, as the party raising the affirmative defense,
will thus

have the burden of proof by a preponderance of the evidence
as to

the actual guilt of the plaintiff.10 Morrow v. New Moon
Homes,

Inc., 548 P.2d 279, 294 (Alaska 1976) ("The party
raising the

affirmative defense generally bears the burden of proof
as to

that issue.").

Shaw has established the first two elements of
the four

elements required for a legal malpractice claim as well
as the

additional element of post-conviction relief necessary
for a

legal malpractice claim arising out of a prior criminal
matter.

The two remaining elements are causation and damages.11 In
order

to prove causation, Shaw must establish by a preponderance
of the

evidence that "but for" the attorney's
negligent

misrepresentation, the criminal jury would have returned
a more

favorable verdict. Thus, Shaw will have to prove a jury
would

not have found him guilty of the charged conduct
beyond a

reasonable doubt.
In order to prove he would have been found innocent at

trial on the original charges, Shaw, as most civil
malpractice

plaintiffs, will have to present a "trial within a
trial."12 In

the context of a legal malpractice action arising out of a
prior

criminal proceeding, the standard of proof will be a
complex one,

in essence, a standard within a standard. Shaw must prove
by a

preponderance of the evidence that, but for the negligence
of his

attorney, the jury could not have found him guilty
beyond a

reasonable doubt. In so proving his legal innocence,
Shaw is

limited by the procedural and evidentiary rules
applicable in

criminal proceedings and trials. That is, Shaw may
prove his

legal innocence only through the use of evidence and
witnesses

that would have been admissable if presented at his
criminal

trial.

If the State pleads the affirmative defense of
Shaw's

actual guilt, its burden of proof will be by a
preponderance of

the evidence. In order to prove Shaw's actual guilt, the
State

is not limited to evidence admissable at the criminal
trial to

prove Shaw's guilt beyond a reasonable doubt. As
discussed

above, the justifications supporting the rules of
procedure and

evidence applicable in the criminal setting are not
present in

the civil arena. Thus "evidence of guilt should not be
limited

to that introduced in the underlying prosecution."
Sullivan v.

Wiener, 1989 WL 65163, at *1 (N.D. Ill. June 5,
1989). "Such

evidence can include any and all confidential
communications, as

well as otherwise suppressible evidence of factual
guilt."

Bailey, 1993 WL 51765, at *15 n.12.
III. CONCLUSION

We AFFIRM the superior court's
determination that

prejudgment interest in Shaw's criminal malpractice
action did

not begin to accrue until Shaw obtained post-conviction
relief

and served the complaint.

We hold that innocence or the actual guilt of a
former

criminal defendant is relevant in a subsequent malpractice
claim

against his defense attorney. We thus AFFIRM the
superior

court's determination that a former criminal defense
attorney can

raise the plaintiff's actual guilt as an affirmative
defense

against a malpractice action brought by a former
criminal

defendant, and that the defense attorney's burden of proof
as to

this affirmative defense will be a preponderance of the
evidence.

COMPTON, Justice, dissenting in part.

This court has held that the guilt of a
defendant in a

criminal proceeding is relevant in a civil
malpractice suit

brought by the defendant against his or her former
defense

attorney. In Shaw v. State, 816 P.2d 1358 (Alaska 1991)
(Shaw

I), we held that "a convicted criminal defendant must
obtain post-

conviction relief before pursuing an action for
legal

malpractice." Id. at 1360. Therefore only a defendant
who is

not guilty of the offense charged, by virtue of having had
his or

her conviction set aside, can maintain a civil malpractice
suit.

The court now adds further limitations, including creation
of a

new concept of criminal guilt, guilt by a preponderance
of the

evidence. The court calls this "actual" guilt. The
court then

penalizes "actually" guilty plaintiffs by denying
them the

ability to recover civil damages resulting from their
former

defense attorney's proven negligence. The court
holds that

Shaw, in order to maintain a civil suit against his
former

defense attorney for malpractice allegedly occurring
in the

criminal proceeding, must establish: (a) that the
conviction has

been set aside; (b) duty; (c) breach of duty; (d)
causation; and

(e) damages.

In regard to causation, the court remarks
that Shaw

"must establish by a preponderance of the evidence
that 'but for'

the attorney's negligent misrepresentation, the
criminal jury

would have returned a more favorable verdict." He "will
have to

prove a jury would not have found him guilty of the
charged

conduct beyond a reasonable doubt . . . to prove he
would have

been found innocent at trial on the original
charges . . . ."

"In so proving his legal innocence," [Shaw will be]
limited by

the procedural and evidentiary rules applicable in
criminal

proceedings and trials and "may prove his innocence only
through

the use of evidence and witnesses that would have been
admissible

if presented at his criminal trial."13 Slip Op. 12-13.
If Shaw proves all the above, his former defense

attorney may then prove, by a preponderance of the
evidence, the

affirmative defense of Shaw's "actual" guilt. The former
defense

attorney will not be limited to presenting evidence
admissible at

the criminal trial. Evidence may include
confidential

communications and otherwise suppressible evidence
of "actual"

guilt.

The burdens imposed on these plaintiffs,
coupled with

the advantage given former defense attorneys,
virtually

forecloses attorney malpractice suits arising out of
criminal

representation. No public policy, nor any case law, can
justify

this result. I am unpersuaded by arguments in support of
these

further limitations, and therefore dissent.

The court's limited summary of the underlying
facts of

this case does not convey the essence of Shaw's claim.
Shaw and

Toney Powell were arrested and charged with stealing
seventeen

pairs of pants from a mens' store where they both
worked as

janitors. Both Shaw and Powell were represented by
the same

assistant public defender (PD). The PD advised the court
that a

"conflict situation" was arising. However, separate
attorneys

for Shaw and Powell were never provided.

Powell was willing to testify that Shaw
had nothing to do with the theft but defense
counsel did not permit him to do so.
Further, [defense counsel] did not advise
Shaw that he could take the stand in his own
defense, because he wanted to protect Powell.
Additionally, several witnesses at trial were
not allowed to testify as to statements by
Shaw because of the threat to Powell.

Id. at 1359. Powell and Shaw were both convicted.

Shaw failed to appear for sentencing and was
arrested

in 1979 for failure to appear. After sentencing on the
original

charge, and while appealing his failure to appear
conviction,

Shaw was arrested and pled nolo contendere to being a
felon in

possession of a handgun. Id. at 1360. Shaw served
time in

prison from December 1979 until March 1980 on the
original

conviction, from December 1981 until September 1982
on the

failure to appear charge, and from October 1985 until
September

1986 on the felon in possession charge.

On August 15, 1986, the superior court
set aside Shaw's 1973 convictions because
they were constitutionally defective. Id.
(emphasis added). In order to obtain post-
conviction relief based on ineffective
assistance of counsel, Shaw had to show "that
his lawyer's skill . . . fell below that of a
lawyer with ordinary training and skill in
the criminal law, and second, that this
defective performance contributed in some way
to his conviction."

Id. at 1361 n.4 (quoting Larson v. State, 614 P.2d
776, 780

(Alaska 1980)). All time served was traceable to the
original

conviction. II.

Alaska is already part of the "majority" of
courts that

hold innocence relevant in a civil malpractice suit
arising out

of a criminal proceeding. The court cites John M.
Burkoff,

Criminal Defense Ethics 3.1(c), at 3-11 (1992), as
authority

for its proposition that "a vast majority of courts
have held

that innocence or actual guilt of the criminal
defendant is

relevant." 2 R. Mallen & J. Smith, Legal Malpractice
21.3 at

80 (3d ed. 1992), voices a similar conclusion. Both
already have

included Alaska as part of this "majority" of courts
which hold

guilt or innocence relevant in the civil malpractice
suit,

because of our decision in Shaw I.14

In Stevens v. Bispham, 851 P.2d 556 (Or.
1993), the

Oregon Supreme Court adopted a requirement of post-
conviction

relief or some other exoneration of the underlying
offense. The

Stevens court cited Shaw, along with Carmel v. Lunney, 511
N.E.2d

1126 (N.Y. 1987), and Glenn v. Aiken, 569 N.E.2d 783
(Mass.

1991), as the "leading cases that require successful
post-

conviction relief proceedings, or some other
allegation of

innocence of the underlying charge." 851 P.2d at 562.

However, the court mischaracterizes
the "majority"

which considers guilt or innocence relevant, because
other

jurisdictions which require proof of innocence by the
plaintiff

in the civil malpractice suit do not necessarily require
post-

conviction relief in the criminal proceeding. In
Carmel, 511

N.E.2d at 1127, plaintiff's conviction in the criminal
proceeding

had not been successfully challenged prior to the
civil

malpractice suit. In Glenn, 569 N.E.2d 783, the
plaintiff was

required to prove innocence by a preponderance of the
evidence,

but post-conviction relief was held to be a
prerequisite to

recovery. Pennsylvania, on the other hand, is in
the "minority,"

requiring not only post-conviction relief and proof of
innocence,

but also a showing of reckless or wanton disregard
of the

plaintiff's interest, before the former criminal
defendant can

recover. Bailey v. Tucker, 621 A.2d 108, 114 (Pa. 1993).15

Until today people of the State of
Alaska were

considered innocent of crime unless and until found guilty
beyond

a reasonable doubt in a criminal proceeding. The court now
makes

a distinction between the "actual" guilt and the "legal"
guilt of

a criminal defendant. What heretofore has been simply
called

guilt is now called "legal" guilt. Slip Op. 6
n.3. "Actual"

guilt, on the other hand, becomes a determination in a
civil

trial, by a preponderance of the evidence, that the
civil

plaintiff engaged in the criminal conduct of which he or
she was

accused in a criminal proceeding. I suggest that the
affirmative

defense of "actual" guilt, proven by a preponderance
of the

evidence, has no place in our jurisprudence.16
Our criminal justice system enables the state to bring

its tremendous prosecuting resources and authority to bear
on an

individual. Thus the system contains numerous
safeguards to

protect the individual. These safeguards, both
constitutional

and procedural, include the right to the assistance
of an

attorney, the right to a speedy trial, the right to a jury
trial,

the privilege against self-incrimination and the
requirement of

proof beyond a reasonable doubt. "These rules are
historically

grounded rights of our system, developed to safeguard
men [and

women] from dubious and unjust convictions, with
resulting

forfeitures of life, liberty, and property." Brinegar v.
United

States, 338 U.S. 160, 174 (1949). These safeguards enable
us to

be more certain that when we label someone "guilty," we
can be

reasonably confident that they are in fact guilty.
However, they

are guilty of the crime charged. The court now
abolishes the

safeguards that ensure this degree of accuracy and
brands a

person "actually" guilty of a crime, if a trier of fact
decides

it is more probably true than not that the person
committed the

crime originally charged.

The court justifies adjudication of "actual"
guilt on

the basis of distinctions between criminal and civil
proceedings.

It makes the astonishing assertion that "a primary goal,
perhaps

the paramount goal, of the criminal justice system is to
protect

the innocent accused against erroneous conviction." Op.
at 6-7.

It then notes that while reliable fact finding is a goal
of both

proceedings, "[i]n the criminal system . . . the goal of
reliable

factfinding and the goal of protecting the innocent
accused may

conflict." Op. at 8. (Footnote omitted). In that case,
reliable

factfinding must give way to protecting the innocent
accused, and

"the determination of the truth . . . is subsumed in
order to

fulfill the goal of protecting the innocent." Op. at 9.
There

being no such conflict in the civil system, the former
defendant

does not have the constitutional and procedural
safeguards

afforded in a criminal proceeding, including proof
beyond a

reasonable doubt. Thus we can adjudicate "actual" guilt.

If a conviction is set aside because of the
ineffective

assistance of counsel, and proceedings against a
defendant

dismissed, was the conviction erroneous? Has the
goal of

protecting an innocent accused been achieved? Is the
defendant

innocent of the crime for which he or she was
charged? The

answer in each instance is "yes." A judicial
determination of

whether the defendant is guilty of the crime originally
charged

has been completed.
The court denigrates the criminal justice system by its

implicit assertion that the greater protection
afforded

defendants in criminal proceedings, such as
constitutional and

procedural safeguards, including the heightened burden of
proof,

impede factfinding, obscure truth and free
defendants on

technicalities. Its attempt to then justify a
civil

determination of "actual" guilt by trumpeting the
factfinding,

truth revealing pre-eminence of the civil justice system
rings

hollow. The court conveniently overlooks the fact that our
civil

justice system endorses such procedures as
establishment and

preclusion orders which render fact and truth
absolutely

irrelevant.

Civil cases involve questions of civil
responsibility,

not questions of criminal guilt or innocence. In this
case, Shaw

must first have had his conviction set aside. This means
that he

must have proven that his former defense attorney's
actions fell

below the standard of conduct for a lawyer with ordinary
training

and skill in criminal law, and that this defective
performance

contributed to the conviction. Duty and breach of duty
have been

admitted. Thus, even though the negligence of the
former

defense attorney has been established, the court holds
that the

attorney may avoid civil responsibility if the
attorney can

prove, by a preponderance of the evidence, that
Shaw was

"actually" guilty of the crime charged.
III.

The court asserts that public policy
demands this

result. "[C]ivil recovery should not be a tool for
shifting an

individual's responsibility for the individual's criminal
acts."

Slip Op. 10. The court cites Adkinson v. Rossi Arms
Co., 659

P.2d 1236 (Alaska 1983) and Lord v. Fogcutter Bar, 813
P.2d 660

(Alaska 1991). In Adkinson, a plaintiff
convicted of

manslaughter attempted to bring a tort action against
the gun

manufacturer for personal losses suffered as a
result of

imprisonment. In Lord, a plaintiff convicted of
kidnapping,

rape, and assault attempted to bring a tort action
against the

bar, which served him alcohol, for the damages he suffered
as a

result of his imprisonment.
The court notes that Adkinson and Lord differ from the

present case in that Shaw does not claim his attorney
contributed

to the criminal act. The court conveniently fails to
note that

both Adkinson and Lord were convicted and had not
challenged the

validity of the convictions. I agree that we should not
allow

the convicted criminal to "shift" the responsibility
for the

consequences of his or her criminal acts. When, as a
result of

the criminal proceeding, it has been determined that a
defendant

is guilty, the defendant alone should bear the
responsibility and

consequences.

However, the public policy which denied
recovery to

civil plaintiffs in Adkinson and Lord is fully served
by our

decision in Shaw I, which requires the criminal
defendant to

obtain post-conviction relief prior to bringing his or her
civil

malpractice suit. Once the criminal defendant has obtained
post-

conviction relief and his or her conviction has been set
aside,

there has been a judicial determination that there is no
criminal

responsibility. There simply is no public policy which
should

allow a negligent attorney to shift the responsibility
for that

attorney's negligence onto a plaintiff who has
demonstrated that

he or she is not guilty of the crime charged.

The court's adoption of the rule that guilt
by a

preponderance of the evidence is an affirmative defense
to a

civil malpractice suit has three unfortunate results.
First, as

a practical matter a person who is in fact innocent of
criminal

conduct is more likely to be found guilty when
preponderance of

the evidence is the standard of proof than when guilt
beyond a

reasonable doubt is the standard of proof.
Safeguards in

criminal proceedings that ensure that innocent people
are not

found guilty will not apply in the civil malpractice suit.

Second, a person who engages in specific
conduct is

treated very differently if charged with a crime, compared
to a

person who engages in the same conduct, but is not charged
with a

crime. For example, a civil defendant -- not charged
with a

crime -- who commits fraud, and is found civilly liable
because

of his or her attorney's malpractice, may recover civil
damages

against the attorney in a civil malpractice suit,
including

punitive damages, regardless of what the defendant did in
fact.

However, a criminal defendant who commits the same fraud,
yet who

would not have been convicted but for the attorney's
malpractice,

may never even get his or her case before the trier of fact.
Third, attorneys in civil cases are treated very

differently from attorneys in criminal cases. The
criminal

defense attorney will no longer be found civilly
liable for

malpractice if he or she defends a person later
found "actually"

guilty of the crime originally charged, by a preponderance
of the

evidence. Yet attorneys in civil proceedings will continue
to be

exposed to liability for civil malpractice, regardless
of what

their client did or did not do in fact.

V.

Alaska already places the very heavy burden
on a

criminal defendant to obtain post-conviction relief
as a

prerequisite to maintaining a civil malpractice suit
against his

or her former defense attorney. Allowing a negligent
attorney to

escape liability by permitting a trier of fact to
determine that

the civil plaintiff, who no longer stands convicted of any
crime,

probably committed the crime for which he or she has
not been

convicted, violates principles of our criminal justice
system and

our civil tort system. The civil plaintiff has already
proven,

by post-conviction relief in the criminal proceeding,
that the

former defense attorney's skill fell below minimal
standards of a

lawyer with ordinary skill and training in criminal law,
and that

this defective performance contributed to the conviction.
If at all, I would only recognize an affirmative

defense that despite the attorney's negligence, the
civil

plaintiff would have been convicted of the crime
originally

charged, beyond a reasonable doubt, at a trial in
which all

constitutional and procedural safeguards were afforded.

_______________________________
1. Both issues in this case concern questions of
law. We
review questions of law de novo. Langdon v. Champion,
745 P.2d
1371, 1372 n.2 (Alaska 1987) (citations omitted).

2. "Professional malpractice consists of four
elements:
`(1) the duty of the professional to use such skill,
prudence,
and diligence as other members of the profession commonly
possess
and exercise; (2) a breach of that duty; (3) a proximate
causal
connection between the negligent conduct and the
resulting
injury; and (4) actual loss or damage resulting
from the
professional's negligence.'" Belland v. O.K. Lumber Co.,
Inc.,
797 P.2d 638, 640 (Alaska 1990) (quoting Linck v.
Barokas &
Martin, 667 P.2d 171, 173 n.4 (Alaska 1983)).

3. We make a distinction in this case between
the "actual"
guilt or innocence of a defendant and the "legal"
guilt or
innocence of a defendant. "Legal" guilt or innocence
is that
determination made by the trier of fact in a criminal
trial.
Thus a defendant found "legally" guilty has been found
guilty
beyond a reasonable doubt by a jury of his peers in a
criminal
adjudication. "Actual" guilt is intended to refer
to a
determination in a civil trial, by a preponderance
of the
evidence, that the defendant engaged in the conduct
he was
accused of in the prior criminal proceeding. See also
Glenn v.
Aiken, 569 N.E.2d 783, 789 (Mass. 1991) (Liacos,
C.J.,
concurring) ("A criminal trial is an adjudication
of a
defendant's legal guilt. As a result, a jury verdict
does not
address necessarily the issue of a defendant's actual
guilt. Two
examples suffice to make the point. A defendant who
committed
the crime may be acquitted if the jury, based on the
evidence
introduced by the prosecution, had a reasonable doubt as
to the
defendant's legal guilt. Or alternatively, a defendant
may be
acquitted because evidence of guilt is suppressed due to it
being
tainted by some constitutional violation by law
enforcement
personnel.").

4. John M. Burkoff, Criminal Defense Ethics 3.1(c),
at 3-
11 (1992); see also Glenn v. Aiken, 569 N.E.2d 783, 788
(Mass.
1991) (in order to recover for attorney malpractice,
plaintiff
must prove by a preponderance of the evidence that he is
innocent
of the crime charged); Carmel v. Lunney, 511 N.E.2d
1126, 1128
(N.Y. 1987) (unless a plaintiff can assert his
innocence, "public
policy prevents maintenance of a malpractice action
against his
attorney"); Bailey v. Tucker, 1993 WL 51765, at *4 (Pa.
Feb. 26,
1993) (plaintiff must prove that he is innocent of the
crime
charged or any lesser included offense).

5. Such protections include the right to the
assistance of
an attorney, the right to a speedy trial, the right to
a jury
trial, the privilege against self-incrimination,
and the
prohibition against double jeopardy. See Brinegar v.
United
States, 338 U.S. 160, 174 (1949) (noting that "[t]hese
rules are
historically grounded rights of our system,
developed to
safeguard men from dubious and unjust convictions, with
resulting
forfeitures of life, liberty, and property").

6. In Ake v. Oklahoma, 470 U.S. 68 (1985), the
Supreme
Court recognized the protective role of the Constitution,
noting:
"The private interest in the accuracy of a criminal
proceeding
that places an individual's life or liberty at risk is
almost
uniquely compelling. Indeed, the host of safeguards
fashioned by
this Court over the years to diminish the risk of
erroneous
conviction stands as a testament to that concern." Id. at
78.

7. We have previously noted this conflict, quoting
Justice
Black's observation:

A criminal trial is in part a search for
truth. But it is also a system designed to
protect "freedom" by insuring that no one is
criminally punished unless the State has
first succeeded in the admittedly difficult
task of convincing a jury that the defendant
is guilty. . . . The Framers decided that
the benefits to be derived from the kind of
trial required by the Bill of Rights were
well worth any loss in "efficiency" that
resulted.

McCracken v. Corey, 612 P.2d 990, 996 n.15 (Alaska 1980)
(quoting
Williams v. Florida, 399 U.S. 78, 113-14 (1970)
(Black, J.,
concurring and dissenting)).

8. Justice Harlan also discussed the different
views held
concerning the effects of erroneous outcomes in the
civil and
criminal systems. In re Winship, 397 U.S. at 370-72
(Harlan, J.,
concurring). He noted that in a civil suit for money
damages,
"we view it as no more serious in general for there to
be an
erroneous verdict in the defendant's favor than for there
to be
an erroneous verdict in the plaintiff's favor. . . .
In a
criminal case, on the other hand, we do not view the
social
disutility of convicting an innocent man as equivalent
to the
disutility of acquitting someone who is guilty." Id. at
371-72,
quoted in Alto, 589 P.2d at 406-07 n.16.
9. See Ferri v. Ackerman, 444 U.S. 193, 198 (1979)
("[W]hen state law creates a cause of action, the State
is free
to define the defenses to that claim . . . .").

In designating guilt-in-fact as an affirmative
defense,
we note its similarity to other affirmative
defenses. The
traditional defenses of contributory/comparative
negligence and
assumption of the risk both look to the plaintiff's
actions.
Each defense asks how plaintiffs might be responsible for
their
own injuries. Guilt-in-fact has the same focus. In other
words,
if plaintiffs actually engaged in criminal conduct, then
they are
partially responsible (and more culpable) for their own
resulting
injuries (such as incarceration). Under these
circumstances, the
plaintiff's own conduct precludes his or her recovery,
just as
with other conventional defenses.

10. Since we have recognized an affirmative defense
in this
opinion, the State has the option of amending its
pleading to
allege such a defense.

11. The issue of damages is not currently before this
court.

12. The "trial within a trial" is discussed by
Mallen and
Smith in their treatise on malpractice:

[The elements of the legal malpractice
action] are traditionally handled by having a
trial within a trial, the goal of which is to
determine what the result of the underlying
proceeding or matter should have been. For
example, when the error relates to the
failure to offer or exclude evidence in the
underlying action, the trier of fact must
determine what effect the absence or presence
of the evidence had and determine what the
"new" result should have been. The trial
judge must decide issues of law which were
not previously urged or adequately briefed.

Mallen & Smith, supra, 27.1, at 624.

13. It is not possible to reconcile this
discussion of
causation with the court's discussion of causation in
Shaw I.
One justification advanced in Shaw I for requiring a
defendant to
obtain post-conviction relief as a prerequisite to
maintenance of
a civil malpractice suit against former defense counsel was
that

post-conviction relief promotes judicial
economy because many issues litigated in the
quest for post-conviction relief will be
duplicated later in the legal malpractice
action. This is because dispositive post-
conviction relief is relevant to the issue of
proximate causation.

Shaw, 816 P.2d at 1361 (citation omitted) (emphasis
added). In a
footnote to the citation, the court remarks:

The burden of proof in the two
proceedings is similar. In obtaining post-
conviction relief for ineffective assistance
of counsel, defendant must show "that his
lawyer's skill . . . fell below that of a
lawyer with ordinary skill and training in
the criminal law, and . . . that this
defective performance contributed in some way
to his conviction." Larson v. State, 614
P.2d 776, 780 (Alaska 1980). In a post-
conviction relief proceeding the petitioner
must prove by a preponderance of the evidence
all facts necessary to overturn the prior
judgment of conviction. Merrill v. State,
457 P.2d 231, 234 (Alaska 1969), rev'd on
other grounds, Donnelly v. State, 516 P.2d
369 (Alaska 1973).

Unless successful post-conviction relief based
on the
ineffective assistance of counsel satisfies the causation
element
of the civil malpractice suit, there will be no
promotion of
judicial economy, and that justification for requiring
post-
conviction relief evaporates.

14. It seems redundant for this court to now claim
it is
aligning itself with a "majority" of courts of which
it is
already a part.

15. A number of courts do not require either
post-
conviction relief or innocence as elements of a civil
malpractice
case. See Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989)
(holding
post-conviction relief is not an element of legal
malpractice
action arising from criminal representation); Schlumm v.
Terrence
J. O'Hagam, P.C., 433 N.W.2d 839 (Mich. App. 1988)
(holding that
the trial court erred in ruling that the plaintiff must
plead and
prove his innocence).

16. Neither Burkoff nor Mallen & Smith suggest a
defense of
"actual" guilt. In the treatises they have written, not
one case
is cited that supports the proposition that proof
of "actual"
guilt, by a preponderance of the evidence, is an
affirmative
defense to a civil malpractice suit brought by a plaintiff
whose
criminal conviction has been set aside.

attorney malpratice, 6/11/03, by justice for all.

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