                   IN THE SUPREME COURT OF TENNESSEE
                              AT NASHVILLE
                                     June 13, 2001 Session

                JOHNIE N. GIBSON v. DOUGLAS TRANT, ET AL.

                       Appeal from the Circuit Court for Knox County
                        No. 3-399-93 Wheeler A. Rosenbalm, Judge



                   No. M1999-00390-SC-R11-CV - Filed October 5, 2001


This case presents the question whether a criminal defendant must obtain post-conviction relief in
order to maintain a legal malpractice action against his defense lawyer (what is often referred to as
a “criminal malpractice” action). The trial court held that he must. Since the plaintiff in the
malpractice case here was denied post-conviction relief, the court dismissed his claim against his
former defense lawyers. The Court of Appeals affirmed. We now affirm. Along with the large
majority of courts to address this issue, we adopt the rule that a plaintiff in a criminal malpractice
action must show he has been exonerated. To meet this requirement, the plaintiff must obtain post-
conviction relief. Because the plaintiff did not obtain such relief, the courts below correctly ruled
that the defendants are entitled to summary judgment.


        Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the
                               Court of Appeals Affirmed

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which, RILEY ANDERSON,
JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR. filed a
concurring/dissenting opinion.

Gerald C. Russell, Nashville, Tennessee, for the appellant, Johnie N. Gibson.

Jeffrey A. Woods, Knoxville, Tennessee, for the appellees, Douglas Trant and Jerry Cunningham.



                                             OPINION

                                            Background

       On August 16, 1989, Johnie N. Gibson (“Gibson”), along with numerous co-defendants, was
charged with committing drug-related offenses in a multi-count indictment in the U.S. District Court
for the Eastern District of Tennessee. Gibson hired Jerry Cunningham (“Cunningham”) to represent
him, and Cunningham brought in Douglas Trant (“Trant”) to assist with the case.
        Gibson alleges that Trant and Cunningham asked him to persuade his co-defendants to hire
them as well, “telling [Gibson] that none of the Co-Defendants could plead out and testify against
him if they were under Trant and Cunningham’s representation . . . that if they could get the other
Co-Defendants ‘under the same umbrella’ they would united stand [sic].” A total of seven co-
defendants ultimately hired Trant and Cunningham to represent them. Gibson alleges that this joint
representation, engendered through unethical persuasive tactics, created a “severe” conflict of
interest.

        Gibson further alleges that Trant and Cunningham pressured him to plead guilty.
Specifically, he claims that Trant told him that a failure to plead guilty would cause the federal
prosecutors to file charges against his elderly father. Gibson claims he agreed to plead guilty to
avoid this result. Trant also allegedly told him not to tell the federal district court judge during the
plea hearing that the government threatened to prosecute his father; if he did mention the threat, the
judge would not accept the guilty plea and the government would carry out its threat. Finally,
Gibson alleges that Trant told him he would receive a sentence of eight to ten years.

       After Gibson entered the guilty plea, the district court sentenced him to twenty years without
the possibility of probation or parole, the minimum sentence according to the federal sentencing
guidelines. Gibson alleges that once he pled guilty, Trant and Cunningham “started taking the other
Co-Defendants down like dominos, by pleading them guilty, because [he] was out of the way.”

       Gibson filed a civil complaint in state court alleging that Trant and Cunningham’s
misconduct constituted legal malpractice. He also raised allegations of gross negligence, outrageous
conduct, and fraud, based on the same conduct. In 1993, Trant and Cunningham moved to dismiss
this complaint, a motion the court denied a year later.

         Gibson also attempted to have his plea vacated on the ground that it was involuntary, by
filing a motion for habeas corpus relief in federal district court pursuant to 28 U.S.C. § 2255.1 The
district court denied his motion, thereby holding that his plea was voluntary. In 1995, the parties
filed an agreed order in the state trial court indicating that Gibson’s habeas petition had been denied
but that he intended to appeal to the United States Court of Appeals for the Sixth Circuit.
Significantly, the agreed order stated that “the relief sought under [the habeas statute] is for the same
action complained of in the instant case, and the parties agree that it will be to everyone’s advantage
to take this case off the trial docket until after the said appeal is over.” The order provided that


         1
          The parties refer to this as a “post-co nviction p roceedin g,” whic h it is, although in federal practice it is called
a habeas proceeding. Of course , since the drug conviction w as in the federa l system, there were n o state post-
conviction proceedings under the Tennessee Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-201 et seq.
(1997 Repl.). Ne vertheless, it is worth emphasiz ing that our ho lding today applies to both federal and state post-
conviction proceedings, for, as is clear from our discussion of the exoneration requirement, there is no reason to
distinguish betw een the two in th is context.

                                                              -2-
Gibson’s legal malpractice case would not be put back on the jury trial docket until his Sixth Circuit
appeal was decided, unless either party moved for an earlier court date.

        The Sixth Circuit affirmed the district court’s denial of habeas relief. Gibson did not seek
review in the United States Supreme Court. Trant and Cunningham then filed a second motion to
dismiss in state court. Pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, they
asserted that Gibson’s complaint failed to state a claim upon which relief could be granted because
he “suffered no damages as a proximate result of the alleged breach of the Defendant’s duty of
representation . . . .” The defendants aver that since the Sixth Circuit affirmed the district court’s
denial of post-conviction (in this case, habeas) relief, the federal courts have already determined that
Gibson’s guilty plea was valid; Gibson cannot now recover damages based on the claim that his plea
was invalid.

        The state court granted Trant and Cunningham’s motion to dismiss. In its order, the court
stated: “This Court has determined that in light of the Federal Courts’ holding that Mr. Gibson’s
plea of guilty was, in fact, voluntary, and there exists no right or recovery in this action in this court,
mandating dismissal of this case.” In making this determination, the court recognized that its
knowledge of what occurred in the federal habeas proceedings was limited, for the documents in that
case were placed under seal. The record does not reveal the reason for the seal, but at oral argument
before this Court Gibson’s counsel suggested that Gibson himself moved to have the record sealed.
Whatever the reason for the seal, the record of the federal proceedings is limited to an oral stipulation
the parties made during the hearing on the second motion to dismiss. That stipulation, which was
included in the trial court’s order, states as follows:

                In the United States District Court For The Eastern District of Tennessee, the
        plaintiff entered a plea of guilty to a single count of engaging in a continuing criminal
        enterprise in violation of 21 U.S.C. § 848. After the trial Court’s acceptance of the
        plaintiff’s plea and the imposition of sentence, a “Motion under 28 U.S.C. § 2255 to
        Vacate, Set Aside, or Correct [a] Sentence by a Person in Federal Custody” was filed.
        The Federal Court placed that file under “SEAL” and it remains sealed to this day.

                The § 2255 motion allegedly [sic] breach of plaintiff’s Plea Agreement by the
        United States, that his plea of guilty was involuntary, that the defendants encountered
        an actual conflict of interest in representing Mr. Gibson but nevertheless contained
        [sic] multiple representation of him and his six (6) co-defendants and that the
        defendants, Cunningham and Trant, were ineffective in representing the defendant
        in connection with the foregoing. The trial court denied the plaintiff’s request for
        relief and dismissed his action after an evidentiary hearing. The case was appealed
        to the United States Sixth Circuit Court of Appeal which affirmed the trial court. No
        application for a Writ of Certiorari to the Supreme Court was filed and the time
        limitation for doing so has long expired.




                                                   -3-
      Gibson appealed to the Court of Appeals, which affirmed the trial court. The Court of
Appeals, after surveying the case law from other jurisdictions, reasoned as follows:

       [T]he anomaly of allowing this suit to go forward is obvious. The voluntary plea of
       guilty to a criminal charge was the proximate cause of any injury or loss suffered as
       a result of the conviction, and the appellant must obtain post-conviction relief as a
       condition precedent to the maintenance of this action. The majority rule is clear: a
       guilty person is not entitled to civil damages for being found guilty notwithstanding
       his/her lawyers’ negligence. We agree with the argument of the appellees that the
       allowance of this action would shock the public conscience, engender disrespect for
       the judicial system and generally discredit the concept of justice.

        Gibson filed an application in this Court seeking review of the Court of Appeals’ judgment.
We granted permission to appeal and now affirm that court’s decision. Specifically, we hold that
a plaintiff must obtain post-conviction relief in order to maintain a legal malpractice claim against
his defense lawyers. Because Gibson cannot meet this standard, the courts below correctly ruled that
Trant and Cunningham are entitled to summary judgment.

                                             Analysis
       Appellate review of this question of law is de novo, without a presumption of correctness of
the Court of Appeals’ judgment. See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.
1999); Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996).

          Although the issue before us first came to the trial court on Trant’s and Cunningham’s
motion to dismiss, Tenn. R. Civ. P. 12.02(6), the parties and the court considered matters outside
the pleadings, namely, the stipulation quoted above. Therefore, the Court of Appeals properly
treated the motion as one for summary judgment. See Tenn. R. Civ. P. 12.03 (“If, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule
56 . . . .”).

        Rule 56.04 provides that summary judgment is appropriate where: (1) there is no genuine
issue with regard to the material facts relevant to the claim or defense contained in the motion, and
(2) the moving party is entitled to judgment as a matter of law on the undisputed facts. See Staples
v. CBL & Associates, Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). “Courts must view the evidence in the light most favorable to the nonmoving party
and must also draw all reasonable inferences in the nonmoving party’s favor.” Staples, 15 S.W.3d
at 89. “Courts should grant a summary judgment only when both the facts and the inferences to be
draw from the facts permit a reasonable person to reach only one conclusion.” Id.

        The specific issue before us is one of first impression for our Court. The closest precedent
is Sanjines v. Ortwein & Assocs., 984 S.W.2d 907 (Tenn. 1998), which addressed the issue of
whether a plaintiff who files a malpractice claim against his defense lawyer has a right to a stay of


                                                -4-
that claim until all his post-conviction proceedings are complete. We held that he does not. Id. at
911; see Logan v. Winstead, 23 S.W.3d 297, 302 (Tenn. 2000) (“While the Sanjines case dealt with
a plaintiff’s filing of simultaneous civil and post-conviction actions, its language makes clear that
incarcerated plaintiffs do not have a constitutional right to a stay of their civil proceedings.”). We
further held that it is “within the trial court’s discretion to determine, on a case-by-case basis, how
to effectively move both cases through the system at the same time.” Sanjines, 984 S.W.2d at 911.
The rationale of this holding, in part, was that a trial court should have the discretion to dismiss
frivolous cases on the pleadings, or on summary judgment motions, rather than having to keep such
claims on the docket for years, to the detriment of the defense attorney who may well have done an
exemplary job representing the client.

        Today we are faced with a case where the trial court decided not to dismiss the malpractice
case at the outset. The court instead waited until the post-conviction proceedings were complete,
and then, considering the outcome of those proceedings, dismissed the case. The question presented
is whether, as the Court of Appeals held, the trial court’s reason for dismissing the case was proper,
namely, that a plaintiff cannot maintain a malpractice claim against his criminal defense lawyer
unless he first prevails in his post-conviction proceeding.

         We begin our analysis by listing the elements of a malpractice claim. In order to make out
a prima facie legal malpractice claim, the plaintiff must show (1) that the accused attorney owed a
duty to the plaintiff, (2) that the attorney breached that duty, (3) that the plaintiff suffered damages,
(4) that the breach was the cause in fact of the plaintiff’s damages, and (5) that the attorney’s
negligence was the proximate, or legal, cause of the plaintiff’s damages. See Lazy Seven Coal Sales,
Inc. v. Stone & Hinds, 813 S.W.2d 400, 403 (Tenn. 1991); Horton v. Hughes, 971 S.W.2d 957, 959
(Tenn. Ct. App. 1998). As with any tort claim, the plaintiff has the burden of proving each of these
elements. One way of framing the question presented in this case is whether the tort of legal
malpractice requires any additional elements if the plaintiff is a criminal defendant who is suing the
lawyer who represented him in the criminal case. Specifically, must a plaintiff prove – in addition
to the five basic elements – that he obtained relief in a final post-conviction judgment? For a number
of compelling reasons, we hold that a plaintiff in what courts often call a “criminal malpractice”
action must prove this additional element.

         The large majority of courts to address this issue have held that some form of exoneration
is a precondition to maintaining a criminal malpractice claim. A plaintiff must meet this exoneration
requirement before he can sue his defense lawyer.

        Some courts hold that a plaintiff must be exonerated through post-conviction relief. See
Shaw v. State, 816 P.2d 1358, 1360 (Alaska 1991) (Shaw I); Steele v. Kehoe, 747 So.2d 931, 933
(Fla. 1999); Levine v. Kling, 123 F.3d 580, 583 (7th Cir. 1997) (applying Illinois law); Berringer v.
Steele, 758 A.2d 574, 597 (Md. Ct. Spec. App. 2000); Morgano v. Smith, 879 P.2d 735, 737 (Nev.
1994); Stevens v. Bispham, 851 P.2d 556, 566 (Or. 1993); Bailey v. Tucker, 621 A.2d 108, 115 (Pa.
1993); Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995); Adkins v. Dixon, 482 S.E.2d
797, 801 (Va. 1997). Cf. Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2373, 129 L.


                                                  -5-
Ed. 2d. 383 (1994) (“We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus, 28 U.S.C. § 2254.”).

        Some courts – a number of which are also in the first category – hold that the exoneration
rule requires a plaintiff to be actually innocent of the criminal conduct underlying his conviction.
See Shaw v. State, 861 P.2d 566, 572 (Alaska 1993) (holding that actual innocence is relevant and
that the defense lawyer may raise the issue of the plaintiff’s guilt as an affirmative defense) (Shaw
II); Coscia v. McKenna & Cuneo, 108 Cal. Rptr. 2d 471, 475-76 (Cal. 2001); Wiley v. County of
San Diego, 966 P.2d 983, 991 (Cal. 1998); Gomez v. Peters, 470 S.E.2d 692, 695 (Ga. Ct. App.
1996); Levine, 123 F.3d at 582; Ray v. Stone, 952 S.W.2d 220, 224 (Ky. Ct. App. 1997); Glenn v.
Aiken, 569 N.E.2d 783, 788 (Mass. 1991) (holding that a plaintiff must prove actual innocence, but
not deciding whether this is required in a case involving the defense lawyer’s “clear negligence
whose causal connection to the conviction is clear”); Rodriguez v. Nielsen, 609 N.W.2d 368, 374
(Neb. 2000); Morgano, 879 P.2d at 738; Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987);
Mahoney v. Shaheen, Cappiello, Stein & Gordon, 727 A.2d 996, 998-99 (N.H. 1999); Bailey, 621
A.2d at 113; Peeler, 909 S.W.2d at 497-98; Adkins, 482 S.E.2d at 801.

        Only a few courts have rejected the exoneration requirement, or implied that they would in
an appropriate case. See Mylar v. Wilkinson, 435 So.2d 1237, 1239 (Ala. 1983) (confronting a
plaintiff who had obtained post-conviction relief, but suggesting there is no difference between civil
and criminal malpractice cases); Gebhardt v. O’Rourke, 510 N.W.2d 900, 906 (Mich. 1994); Duncan
v. Campbell, 936 P.2d 863, 866-68 (N.M. Ct. App. 1997) (confronting a plaintiff who had obtained
post-conviction relief, but rejecting the reasoning behind the exoneration rule); Krahn v. Kinney, 538
N.E.2d 1058, 1061 (Ohio 1989). See also Jepson v. Stubbs, 555 S.W.2d 307, 313-14 (Mo. 1977)
(confronting a plaintiff who had obtained post-conviction relief, but stating directly that there is no
difference between civil and criminal malpractice cases). But see State ex rel. O’Blennis v. Adolf,
691 S.W.2d 498, 504 (Mo. Ct. App. 1985) (relying on collateral estoppel and public policy
arguments consistent with the exoneration requirement).

        Courts rejecting the exoneration requirement essentially reason that a criminal defense
lawyer’s wrong advice can cause her client harm, just as a civil lawyer’s advice can; since a plaintiff
in a criminal malpractice case may be able to meet his burden of proof, no justification exists for a
bright-line exoneration rule denying recovery; each case should be given a full hearing, and only
frivolous cases should be dismissed. See, e.g., Gebhardt, 510 N.W.2d at 906; Krahn, 538 N.E.2d
at 1061. Moreover, since criminal defense lawyers can indeed harm clients, to impose barriers
against tort recovery on the ground that civil malpractice and criminal malpractice cases are different
in some respects, is to enshrine “legal fictions” into the law. See, e.g., Duncan, 936. P.2d at 867-68.
Perhaps the most forceful articulation and analysis of the minority view can be found in the
concurring opinion in Stevens:


                                                 -6-
       I believe that plaintiff and other persons convicted of a crime will be astonished to
       learn that, even if their lawyer’s negligence resulted in their being wrongly convicted
       and imprisoned, they were not harmed when they were wrongly convicted and
       imprisoned but, rather, that they are harmed only if and when they are exonerated.
       Such persons will be no less astonished because of the majority’s insistence that its
       rule is simply a legal definition of harm (i.e., a legal fiction). Such attempts to
       divorce the law from reality should be avoided.

Stevens, 851 P.2d at 566 (Unis, J., concurring).

        As we explain below, this reasoning is flawed. It fails to adequately account for: equitable
principles; the difficulties of proving causation and damages in a criminal malpractice case, where
the plaintiff has not yet been exonerated; the existence of comprehensive post-conviction review,
which obviously has no counterpart in civil law; collateral estoppel; and the need to encourage the
thorough representation of indigent criminal defendants. But the reasoning fails on perhaps an even
more fundamental level. The minority of courts that reject the exoneration requirement, in effect,
hold that someone unquestionably guilty of a crime (even the most serious of violent crimes), whose
conviction is upheld, may nevertheless sue his defense lawyer and recover damages for the time he
spent in jail.

        The soundness of this result is open to serious doubt; indeed, it may well be indefensible.
This is not simply because of the ethical maxim that a criminal should not profit from his
wrongdoing, see Hicks v. Boshears, 846 S.W.2d 812, 814 (Tenn. 1993); Adkins, 482 S.E.2d at 802,
or that convicts should not be allowed to recover from their defense counsel, thereby shifting
responsibility away from their crime, see, e.g., Shaw, 861 P.2d at 571; Mahoney, 727 A.2d at 999;
Peeler, 909 S.W.2d at 498, or, as the Court of Appeals below thought, because it would “shock the
public conscience, engender disrespect for courts and generally discredit the administration of
justice,” State ex rel. O’Blennis, 691 S.W.2d at 504 (quotation omitted). Apart from these ethical
concerns, there is a serious analytical flaw in the minority rule. As the court in Levine stated (after
noting that a plaintiff must prove he would have been acquitted in order to establish causation):

       [B]ecause of the heavy burden of proof in a criminal case, an acquittal doesn’t mean
       that the defendant did not commit the crime for which he was tried; all it means is
       that the government was not able to prove beyond a reasonable doubt that he
       committed it. On [the plaintiff’s] view there would be cases in which a defendant
       guilty in fact of the crime with which he had been charged, and duly convicted and
       imprisoned (perhaps after a retrial in which he was represented by competent
       counsel), would nevertheless obtain substantial damages to compensate him for the
       loss of his liberty during the period of his rightful imprisonment.

              Not only would this be a paradoxical result, depreciating and in some cases
       wholly offsetting the plaintiff’s criminal punishment, but it would be contrary to
       fundamental principles of both tort and criminal law. Tort law provides damages


                                                   -7-
       only for harms to the plaintiff’s legally protected interests, Restatement (Second) of
       Torts, § 1 comment d, § 7(1) (1965), and the liberty of a guilty criminal is not one of
       them. The guilty criminal may be able to obtain an acquittal if he is skillfully
       represented, but he has no right to that result (just as he has no right to have the jury
       nullify the law, though juries sometimes do that), and the law provides no relief if the
       “right” is denied him.

Levine, 123 F.3d at 582. The California Supreme Court recently found this analysis persuasive,
Wiley, 966 P.2d at 990, and so do we.

        For this fundamental reason alone we reject the minority rule. The question becomes,
therefore, which form of the exoneration rule do we adopt. Because of the procedural posture of this
case, we need not address whether a plaintiff must prove actual innocence. Gibson, as discussed,
has already attempted to vacate his guilty plea as being involuntary, and the federal courts have
rejected his arguments. Thus, he has not been exonerated through post-conviction relief, which
means that he is deemed guilty of violating federal drug laws.

         There are several reasons supporting the exoneration rule in general, and the requirement that
plaintiffs first obtain post-conviction relief in particular. Among the most persuasive reasons, which
several courts have relied on, is the perplexing problem of how a criminal defendant could ever
prove that his lawyer caused him any legally cognizable injury, and the related problem of how he
could prove damages. These are requirements of any tort action, including legal malpractice. See
Lazy Seven Coal Sales, Inc., 813 S.W.2d at 403. The issue may be framed with reference to
Gibson’s case. He claims that were it not for the defendants’ statements about the prosecutor’s intent
to file charges against his father, or their statements concerning his possible maximum sentence, he
would not have been injured. But for these statements, Gibson claims, he would have rejected the
plea bargain and gone to trial. Yet this argument is insufficient. Gibson must also prove that, at
trial, he would have been acquitted, or, if found guilty, he would have received a sentence less than
what he did receive, which was twenty years. We do not see how he could possibly meet this
burden.

        Nevertheless, if the difficulties of proving causation were simply due to the unique nature
of Gibson’s case, it would not be appropriate to adopt a bright-line rule, as we do today. But these
difficulties arise in virtually every criminal malpractice case. The reason, in part, has to do with the
standard of proof in criminal cases, as opposed to civil cases, namely, the state must prove the
defendant’s guilt beyond a reasonable doubt. As one court has stated, the plaintiff “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.” Shaw II, 861 P.2d at 573. In most, if not the
overwhelming majority of cases, we think this standard will prove unmanageable. See Wiley, 966
P.2d at 990; Glenn, 569 N.E.2d at 787-88.

        The dilemma of proving causation is not simply a matter of the complexity of the task facing
jurors. Rather, it highlights a basic, theoretical distinction between civil and criminal malpractice


                                                  -8-
actions that, in terms of the causation requirement, strongly supports treating these cases differently.
The California Supreme Court discussed the issue as follows:

         In a civil malpractice action, the focus is solely on the defendant attorney’s alleged
         error or omission; the plaintiff’s conduct is irrelevant. In the criminal malpractice
         context by contrast, a defendant’s own criminal act remains the ultimate source of
         this predicament irrespective of counsel’s subsequent negligence. Any harm suffered
         is not “only because of” attorney error but principally due to the client’s antecedent
         criminality.

Wiley, 966 P.2d 983, 988; see also Berringer, 758 A.2d at 597 (“If a potential criminal plaintiff is
unsuccessful in obtaining relief from conviction, then it would seem that the attorney’s conduct was
not the proximate cause of the conviction or injury.”); Rodriguez, 609 N.W.2d at 373; Peeler, 909
S.W.2d at 497. Therefore, the Court in Wiley concluded, “it is not at all difficult to defend a
different rule because criminal prosecution takes place in a significantly different procedural context,
‘and as a result the elements to sustain a cause of action must likewise differ.’” Wiley, 966 P.2d 983,
988 (quoting Bailey, 621 A.2d at 114).

        Simply put, criminal malpractice actions arise out of criminal convictions, and the validity
of criminal convictions are not designed to be tested in the civil tort arena. They are not so designed
for two reasons. First, depending on the relief sought, civil damage remedies, if awarded, may
necessarily imply that the criminal courts reviewing the conviction erred. See Heck, 512 U.S. at
486, 114 S. Ct. at 2371 (invoking the “hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments”); Clay v. Allen, 242 F.3d
679, 682 (5th Cir. 2001) (discussing this principle, in a Heck analysis); Olsen v. Correiro, 189 F.3d
52, 68-69 (1st Cir. 1999) (same). Gibson’s suit, if allowed to proceed, would violate this principle.
The federal courts have already determined that his plea was voluntary. This finding necessarily
encompasses the rejection of Gibson’s allegations against Trant and Cunningham: if the evidence
showed that he pled guilty not because he was guilty but because of threats (those of the prosecutor,
as relayed to him by his lawyers) and misrepresentations (the gross miscalculation of his possible
maximum sentence), we must presume that the federal courts would have granted him relief. For
the jury to allow Gibson to recover damages, however, would require it to find that these same
allegations are, in fact, true. This would be in direct contradiction to the federal courts’ judgments.
We should not allow a tort suit to undermine the post-conviction process by overruling its
judgments.2




         2
            This rationale of our holding today rests on the principle that legal malpractice claims should not be allowed
if they call into question previously decided post-conviction judgments – a principle that applies to both state and federal
judgments. We therefore do not address the issue of whether federal common law would prohibit us from allowing a
lawsuit to proceed in state court that, in effect, implied the invalidity of a federal ju dgment. See Semtek Int’l Inc. v.
Lockheed Martin Corp., 531 U.S. 497, 121 S. Ct. 1021 , 1027-2 8, 149 L . Ed. 2d 3 2 (2001 ). Neither the parties nor the
courts below add ressed this issue, but it is a serious one, with constitutional implications.

                                                            -9-
         The second reason is that the “criminal justice system itself provides adequate redress for any
error or omission,” and the many safeguards in the system – the requirement of proof beyond a
reasonable doubt, the exclusionary rule, the right to counsel, etc. – are designed to ensure that
allegations such as Gibson’s do not go unremedied. Wiley, 966 P.2d at 988-89; see also Mahoney,
727 A.2d at 999; Stevens, 851 P.2d at 561; Bailey, 621 A.2d at 114. The post-conviction process
is an essential part of this system, providing another level of court review after the defendant’s direct
appeals. The purpose of post-conviction, after all, is to prevent the wrongly accused and unjustly
convicted from suffering undeserved criminal penalties, and to enforce the constitutional guarantees
of a fair trial. Tort law cannot possibly serve these ends. It is therefore reasonable and fair to require
criminal defendants to look to the legal process designed to provide redress for wrongful convictions,
and then to respect the outcome of that process once it has concluded. As one court has concisely
stated, “it is the public policy of this state to treat any person who has been convicted of any criminal
offense as validly convicted unless and until the person’s conviction has been reversed . . . .”
Stevens, 851 P.2d at 561.

         Another reason that courts have prevented criminal malpractice actions from proceeding
absent post-conviction relief is the doctrine of collateral estoppel (also called “issue preclusion”).
“Once an issue has been actually or necessarily determined by a court of competent jurisdiction, the
doctrine of collateral estoppel renders that determination conclusive on the parties and their privies
in subsequent litigation, even when the claims or causes of action are different.” State ex rel. Cihlar
v. Crawford, 39 S.W.3d 172, 178-79 (Tenn. Ct. App. 2000); see Massengill v. Scott, 738 S.W.2d
629, 631 (Tenn. 1987); Blue Diamond Coal Co. v. Holland-America Ins. Co., 671 S.W.2d 829, 832
(Tenn. 1984); Beaty v. McGraw, 15 S.W.3d 819, 824 (Tenn. Ct. App. 1998). The doctrine promotes
finality, conserves judicial resources, and prevents inconsistent decisions. See State ex rel. Cihlar,
39 S.W.3d at 178; Beaty, 15 S.W.3d at 824. It applies to issues of law and to issues of fact. State
ex rel. Cihlar, 39 S.W.3d at 179 (citing Restatement (Second) of Judgments § 27 (1982)).

        We have never before considered the preclusive effect of a post-conviction court’s finding
that a guilty plea was entered into voluntarily. Nor have we found any precedent in Tennessee that
offers guidance on the application of collateral estoppel in the context of a criminal malpractice case,
especially where the later civil suit is based on the exact same allegations made in the post-
conviction proceedings.3 There can be no dispute that this is an accurate description of the factual

         3
           In support of his argument that collateral estoppel should not apply, Gibson cites Office of Disciplinary
Counsel v. McKinney, 668 S.W.2d 293 (Tenn. 1984), where we held that post-conviction court opinions granting relief
to criminal defe ndants cou ld not be used as evidence in later Board of Professional Responsibility disciplinary actions
against their defense lawyers. McKinney, however, is inapposite; indeed, attorney disciplinary matters are very different
than tort suits. Our principal concern in McKinney was that the attorney never had the opportunity in a previous
preceding to litigate the issue of wh ether his repre sentation am ounted to m isconduc t. As we stated, “M cKinney is
entitled to his ‘day in cou rt’ on the allegations of professional misconduct, and the opportunity to answer the charges
leveled against him by the B oard of P rofessional Responsibility.” Id. at 296-97. Gibson, of course, has already had
his day in cour t.

         Gibson also cites a Court of Appeals’ decision, Grange Mutual Casualty Co. v. Walker, 652 S.W.2d 908, 910
                                                                                                      (continu ed...)

                                                         -10-
and procedural background of Gibson’s case. His malpractice case against Trant and Cunningham
seeks recovery on the theory that they induced him to plead guilty involuntarily. Specifically, he
alleges they told him that the federal prosecutor would file charges against his father if he did not
accept the plea and that he would only receive eight to ten years if he pled guilty (though the
minimum sentence was twenty years). Yet Gibson has already made these allegations before the
federal courts. Moreover, as he was facing a twenty-year jail term, he had every incentive to prove
these allegations and to raise other allegations relating to his claim that he pled guilty based on his
lawyers’ willfully erroneous advice. In finding that his guilty plea was voluntary, those courts
necessarily considered and rejected these allegations. Under these circumstances, their judgments
should be given preclusive effect.4

         This conclusion was strongly stated by Professor Geoffrey C. Hazard, a well-known scholar
of civil procedure:

         The clearest case for such an estoppel is where a defendant pleads guilty to a
         substantial criminal charge and then seeks in civil litigation concerning the same
         transaction to assert that he did not commit the criminal act. Particularly galling is
         the situation where a criminal convicted on his own guilty plea seeks as plaintiff in
         a subsequent civil action to claim redress based on a repudiation of the confession.
         The effrontery or, as some might say it, chutzpah, is too much to take. There
         certainly should be an estoppel in such a case.

Ray, 952 S.W.2d at 224 (a Kentucky Court of Appeals case) (quoting Hazard, Revisiting the Second
Restatement of Judgements; Issue Preclusion and Related Problems, 66 Cornell. L. Rev. 564, 578


         3
          (...continued)
(Tenn. Ct. App. 1983). In Grange, the defendant pled guilty to voluntary manslaughter. The plaintiff/insurance company
sought a declaration that the defendant was not entitled to benefits relating to damages he suffered during the killing.
The court decli ned to apply collateral estoppel, stating that a guilty plea is generally not conclusive on an issue in a
subsequent civil action. Among other differences between Grange and the case at bar, we no te that Grange involv ed
“offensive” collateral estoppel (where the plaintiff attempts to prevent the defendant from relitigating an issue), which
has always been viewed less fav orably than “d efensive” co llateral estopp el (as in Gibso n’s case). See, e.g., Beaty, 15
S.W.3d at 824-25.
         4
           Indeed, a s stated in footnote two of this opinion, it may be that the state courts must apply federal collateral
estoppel law, since the issue at the heart of the preclusion inquiry has been determined by the federal courts. We do not
decide this issue, excep t to note that Semtek, and the cases discussed therein, strongly suggest that federal law controls.
See Semtek, 121 S. Ct. at 1027-28 (“[W]hether a Federal judgment has been given due force and effect in the state co urt
is a Federal qu estion reviewable b y this court, which will determine for itself whether such judgment has been given
due weight or otherwise.”) (quoting Deposit Bank v. Frankfort, 191 U.S. 499, 514, 24 S. Ct. 154, 48 L. Ed. 276 (1903)
(emphas is added)). Moreover, it appears likely that federal co urts would ap ply collateral es toppel he re. See Levine, 123
F.3d at 583 (“If [the plaintiff’s] postconviction attacks on the conviction fail, then he cannot bring a malpractice suit even
if he is prepared to present evidence that he was innocent in fact, and his conviction was therefore unjust. For by
operation of the doctrine o f collateral estop pel, a valid crim inal convictio n acts as a bar to overturning that conviction
in a civil damage s suit.”); see genera lly Burlington Northern R.R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227,
1231-33 (3rd Cir. 1995) (discussing issue preclusion).

                                                            -11-
(1981)). Numerous other courts have applied this reasoning to hold that the failure to obtain post-
conviction relief precludes a criminal malpractice claim concerning the same issues. See Shaw I,
816 P.2d at 1361 (“The requirement of post-conviction relief promotes judicial economy because
many issues litigated in the quest for post-conviction relief will be duplicated in the legal malpractice
claim.”); Sanders v. Malik, 711 A.2d 32, 33-34 (Del. 1998); Levine, 123 F.3d at 583 (“[B]y
operation of the doctrine of collateral estoppel, a valid criminal conviction acts as a bar to
overturning that conviction in a civil damages suit.”); Brewer v. Hagemann, 771 A.2d 1030, 1033
(Me. 2001) (“When the malpractice plaintiff has every incentive in his post-conviction petition to
fully litigate the issue of whether his attorney’s malfeasance caused him any prejudice, collateral
estoppel is appropriate.”); Schlumm v. O’Hagan, 433 N.W.2d 839, 845 (Mich. Ct. App. 1989) (“The
judicial system made a full and fair determination that plaintiff received effective assistance of
counsel through the plea-taking stage. Plaintiff had the opportunity to fully present his case at his
motion for new trial.”); State ex rel. O’Blennis, 691 S.W.2d at 503 (“In this case involving defensive
invocation of collateral estoppel [the plaintiff’s] guilty plea precludes him from denying his guilt of
the assault charge. That plea decided the same issue of fact present in his malpractice case; it
resulted in a judgment on the merits; [the plaintiff] is a party to both cases; he had a full and fair
opportunity to litigate his guilt or innocence.”); Carmel v. Lunney, 119 A.D.2d 50, 53 (N.Y. App.
Div. 1986); Stevens, 851 P.2d at 562 (“[T]o allow a person convicted of a criminal offense to sue
that person’s lawyer without having first overturned the conviction would mean that the courts would
be permitting relitigation of a matter that is supposed to be settled . . . .”). It is true that not all courts
readily apply collateral estoppel in these circumstances. See Gomez, 470 S.E.2d at 695; Krahn, 538
N.E.2d at 1063. But we think that the better rule is to recognize that criminal defendants who seek
to overturn their convictions, as they have every incentive to do, may not relitigate their claims in
a malpractice suit. Preventing such an outcome is the purpose of the collateral estoppel doctrine.

        As we have already explained, a criminal defendant who believes he has been wrongly
convicted should seek redress through the post-conviction process, not through a legal malpractice
action. Collateral estoppel provides that once he does seek such relief, and it is denied, he cannot
thereafter bring a civil claim based on the same allegations brought before the post-conviction court.
It seems to us that the first conclusion leads ineluctably to the second. If the criminal courts are the
mechanisms our society relies upon to provide relief to wrongly-convicted defendants, it should not
be that civil courts may ignore the results of the post-conviction process once it has concluded.

        There is one more compelling reason in support of the post-conviction exoneration rule we
adopt today: encouraging the thorough representation of criminal defendants. We say “thorough”
because a rule allowing criminal defendants to sue their defense lawyers may result in the practice
of “defensive” law, in which lawyers spend time and energy attempting to “insulate their trial court
decisions” from attack in a later malpractice case. Wiley, 966 P.2d at 991. For example, as one
court has noted, “an attorney who believes, based on his professional experience, that a witness
suggested by the defendant will do more harm than good might nonetheless accede to the defendant’s
desire to have that witness testify rather than exercise his legal judgment to exclude him.” Bailey,
621 A.2d at 114. “[I]n our already overburdened system it behooves no one to encourage the



                                                     -12-
additional expenditure [of] resources merely to build a record against a potential malpractice claim.”
Id.; Wiley, 966 P.2d at 991.

       Equally important is the need to ensure the adequate supply of defense lawyers willing to
represent indigent clients. As the Supreme Court of Massachusetts wrote:
       Most criminal defendants in this Commonwealth are represented by counsel
       appointed at public expense or private counsel whose fees are not substantial. The
       public has a strong interest in encouraging the representation of criminal defendants,
       particularly those who are ruled to be indigent. The rule we favor helps to encourage
       that kind of legal representation by reducing the risk that malpractice claims will be
       asserted and, if asserted, will be successful.

Glenn, 569 N.E.2d at 788. Other courts have emphasized this important public policy concern in
adopting the exoneration rule. See Rodriguez, 609 N.W.2d at 374 (“[T]he public has a strong
interest in encouraging the representation of criminal defendants, especially indigents.”); Mahoney,
727 A.2d at 100 (the exoneration rule “promotes an ample defense bar by reducing the risk of
malpractice claims”); Bailey, 609 N.W.2d at 114. We find this argument compelling. An obvious
counter-argument is that criminal malpractice claims may deter bad lawyering. As discussed,
however, when that bad lawyering results in a wrongful conviction there are post-conviction
remedies available to criminal defendants. As for deterrence, the desire to win cases and prevent
clients from suffering criminal penalties is sufficient incentive to do good work, at least for the large
majority of lawyers. For those lawyers whose standard of representation falls short of what the Code
of Professional Responsibility mandates, however, the Board of Professional Responsibility can and
should bring disciplinary actions. We should not rely on legal malpractice actions to do the work
of the criminal justice system and the Board of Professional Responsibility, especially where doing
so may discourage the thorough representation of indigent criminal defendants.

        Based on principles of equity, tort law, post-conviction law, and public policy, we hold that
a criminal defendant must obtain post-conviction relief in order to maintain a legal malpractice claim
against his defense lawyer. Since Gibson did not prevail in his post-conviction proceeding, we
affirm the decision of the Court of Appeals, which affirmed the trial court’s grant of summary
judgment in favor of Trant and Cunningham.

        We must now address Gibson’s argument that, irrespective of our finding that the federal
court fully considered the voluntariness of his plea, other causes of action remain viable.
Specifically, he is suing Trant and Cunningham for gross negligence, outrageous conduct, and fraud,
in addition to legal malpractice. He argues that since the record of the federal court proceedings is
sealed, and the evidence of what occurred in those courts is limited to a narrow stipulation, we have
no basis for dismissing these other claims. We disagree.

       Initially, we note that Gibson’s lawyer at oral argument suggested that Gibson himself moved
to have the federal record sealed. If true, he is judicially estopped from arguing that he is now
prejudiced as a result of the seal. But there is a more important reason for rejecting Gibson’s


                                                  -13-
argument. A close reading of his complaint reveals that none of these allegations involve any facts
apart from those underlying his malpractice claim, namely, the circumstances surrounding the
alleged involuntariness of his plea. It is apparent that Gibson is suing Trant and Cunningham on
these other causes of action precisely because they allegedly gave him incorrect advice about his
sentence, and that, due to a conflict of interest, they employed unethical conduct and false pretenses
(e.g., the prosecutor’s threat to file charges against his father) to force him to plead guilty. There are
no other allegations. Moreover, the parties stipulated in an agreed order that the federal habeas court
considered the same issues underlying Gibson’s malpractice claim; indeed, that is why the trial court
stayed the claim until the outcome of the post-conviction process.

        We therefore find that all of Gibson’s allegations can be reduced to the charge that he
suffered damage because his lawyers induced him to plead guilty involuntarily. As we have
explained, the federal courts have considered and rejected this charge. Gibson is not entitled to
relitigate these claims in the guise of a malpractice suit.

        A final issue relates to how our holding affects the statute of limitations for bringing
malpractice claims, which is one year from the time the cause of action accrues. Tenn. Code Ann.
§ 28-3-104(a)(2). “When the cause of action accrues is determined by applying the discovery rule.”
John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998). “Under this rule, a
cause of action 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
defendant.” Id.; see also Fahrner v. SW Mfg. Inc.48 S.W.3d 141,143 (Tenn. 2001); Shadrick v.
Coker, 963 S.W.2d 726, 733-34 (Tenn. 1998). Since we hold today that a criminal defendant must
first obtain post-conviction relief, for that is an element of his criminal malpractice claim, the
question arises whether he could have “discovered” his action prior to the post-conviction court’s
ruling.

         The answer to this question must be in the affirmative. Otherwise, a criminal defendant
could wait for years before filing his malpractice claim, depending on how long it took to commence
and decide the post-conviction case. This would undermine the purposes behind both the discovery
rule and the one-year statute of limitations. See Coscia,108 Cal. Rptr. 2d at 483. A defendant should
not have to wait years before knowing whether he will be sued, when the plaintiff already knows
the facts supporting his legal claim. Indeed, we have recently decided that if a plaintiff files his
malpractice claim before the post-conviction proceedings have concluded, a trial court has the
discretion whether to allow that claim to proceed. See Sanjines, 984 S.W.2d at 911. As noted
above, the clear implication of Sanjines is that a court can – and should – dismiss a frivolous
malpractice claim. This is necessary as a matter of fairness to the defendant. It is true, however, that
if the trial court decides that the plaintiff’s claim should not be dismissed on the pleadings, or on
summary judgment, the court must await the outcome of the post-conviction proceeding before
deciding whether the case should go to a jury. Depending on the case, this could take several years,
which means that for the criminal malpractice case whose merits appear weak but not frivolous, a
defense lawyer may have to experience significant delay before the court finds in his favor. We see
no way around this difficulty. Nevertheless, we think that defense lawyers will not frequently suffer


                                                  -14-
from this outcome, thereby causing the negative public policy consequences discussed above. Our
holding today promotes the outcome that the only plaintiffs in a criminal malpractice case who will
recover are those who truly deserve to win.


                                          Conclusion
        For the reasons discussed above, we hold that a plaintiff cannot prevail in a “criminal
malpractice” case against his defense lawyer unless he proves that he has obtained post-conviction
relief. The decision of the Court of Appeals is affirmed.




                                             FRANK F. DROWOTA, III, CHIEF JUSTICE




                                               -15-
