Cannon v. Dept. of Justice

Until a person successfully challenges a conviction, he is not “harmed in a legally cognizable way” by a defense counsel’s malpractice. Stevens v. Bispham, 316 Or 221, 230-31, 851 P2d 556 (1993).

Plaintiff appealed the trial court’s dismissal of his claim of professional negligence against his appellate counsel. On appeal, Plaintiff argued that his appellate attorney did not adequately represent him during his direct criminal appeal because the attorney failed to submit viable claims that Plaintiff requested be included in his appeal. The State responded that Plaintiff’s claim is barred by the two-year statute of limitations because Plaintiff discovered the claim more than two years before he filed his professional negligence claim. Plaintiff conceded that he was aware of the basis for the professional negligence claim when he filed his petition for post-conviction relief, but argued that he was legally “estopped” from asserting a civil claim against his appellate attorney until he obtained post-conviction relief and thus, was not precluded from asserting his claim by the statute of limitations. Until a person successfully challenges a conviction, he is not “harmed in a legally cognizable way” by a defense counsel’s malpractice. Stevens v. Bispham, 316 Or 221, 230-31, 851 P2d 556 (1993). The Court of Appeals agreed with Plaintiff’s theory and opined that the prior-exoneration rule articulated in Stevens regarding malpractice claims against trial defense attorneys is equally applicable to malpractice appellate defense attorneys. Thus, the Court concluded that Plaintiff’s claim was not barred by the statute of limitations from asserting his malpractice claim, and found that the claim did not accrue until he was exonerated. Therefore, Plaintiff’s claim against appellate counsel was timely. Reversed and remanded as to claim against OPDSC and appellate defense counsel; otherwise affirmed.