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Paxman v. King

Supreme Court of Utah

July 26, 2019

Paul Paxman, Appellee,
v.
Brian S. King, Appellant.

          Third District, Salt Lake The Honorable Elizabeth A. Hruby-Mills No. 160903568

         On Appeal of Interlocutory Order

          Attorneys: Michael F. Skolnick, Salt Lake City, for appellant.

          ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.

          OPINION

          LEE, ASSOCIATE CHIEF JUSTICE

         ¶1 This is a legal malpractice case that is before us on interlocutory appeal. The malpractice claim was asserted by plaintiff Paul Paxman against his former attorney Brian King. King represented Paxman, an optometrist, in a criminal case arising out of Paxman's Medicaid billing for his services. On advice from King, Paxman pled guilty to charges under the Fraudulent Insurance Act, Utah Code § 76-6-521, and the False Claims Act, id. § 26-20-7. And Paxman was then placed on a federal exclusion list, which prevented him from participating in federal health care programs and billing a number of insurance companies.

         ¶2 On successful completion of probation, Paxman's charges were reduced from third-degree felonies to Class A misdemeanors under Utah Code section 76-3-402. Shortly thereafter Paxman sued King for legal malpractice. He alleged that King failed to inform him of the consequences of pleading guilty or to advise him of the likelihood of success at trial.

         ¶3 King moved for summary judgment. He asked the district court to conclude that Paxman's claims failed as a matter of law under either of two distinct but related rules embraced in some other jurisdictions-the "exoneration rule" and the "actual innocence" requirement. The exoneration rule requires exoneration in a postconviction action as a precondition to a legal malpractice action arising out of a criminal proceeding. And the actual innocence requirement bars criminal defendants from maintaining a legal malpractice action unless they first prove their factual innocence. Both of these rules, in King's view, are "natural extension[s] of the elements required to establish legal malpractice under Utah law."

         ¶4 The district court declined to adopt either rule-though not necessarily because it believed they lacked merit. Instead the court noted "the absence of direction from Utah appellate courts" on the matter. And it "decline[d] to adopt" either rule given the lack of such direction.

         ¶5 King petitioned for leave to challenge this decision on interlocutory appeal. We granted that petition in light of the significant issues raised in King's motion. Paxman failed to appear- he filed no brief defending the district court's decision and made no attempt to participate in oral argument.

         ¶6 Around the time we heard King's appeal, another case came before us presenting the same issues-Thomas v. Hillyard, 2019 UT 29, __ P.3d __. We received full briefing and heard argument in that case. And we decided that neither the exoneration rule nor the actual innocence requirement have a place in our malpractice law. Id. ¶¶ 13-14. We reinforce that decision here. In doing so, we address a few arguments presented by King not considered in Thomas.

         ¶7 This disposition should in no way be viewed as rewarding an appellee for his default on appeal. In an ordinary case we could reverse, even absent any argument from an appellee, upon a determination that the appellant had made a prima facie showing of a plausible basis for reversal. See Broderick v. Apartment Mgmt. Consultants, L.L.C., 2012 UT 17, ¶ 19, 279 P.3d 391. But we have an obligation to get the law right. And this case did not come before us in a vacuum. Thomas v. Hillyard squarely addresses the issues presented here. We rely on that decision to resolve this case, and as a basis for our decision to affirm the decision of the district court.

         I

         ¶8 Prior to our decision in Thomas v. Hillyard, "we ha[d] never explicitly articulated the elements for legal malpractice . . . when the underlying case is criminal." 2019 UT 29, ¶ 13, __ P.3d __. Nor had we ever opined on the propriety of the exoneration rule or the actual innocence requirement. Thomas addressed each of these issues. In Thomas we decided that the elements of a legal malpractice claim based on an underlying criminal case are identical to the elements of a legal malpractice claim based on an underlying civil case. See id. ¶ 14.[1] And we rejected the argument ...


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