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Lewis v. Society of Counsel Representing Accused Persons

United States District Court, Ninth Circuit

December 12, 2013

STEPHEN K. LEWIS, Plaintiff,


ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant SCRAP's Motion for Dismissal on the Pleadings Under FRCP 12(c)" (Dkt. # 14) and defendant King County's joinder therein (Dkt. # 15). Plaintiff alleges that defendant Society of Counsel Representing Accused Persons ("SCRAP") negligently hired an attorney who was subject to disciplinary proceedings in another state, that the attorney was ineffective when defending plaintiff on charges of identity theft, and that SCRAP and King County are liable for the deprivation of plaintiff's constitutional right to the assistance of counsel and for breach of fiduciary duty/negligent hiring. Plaintiff seeks to represent a class of all indigent criminal defendants whose representation was or will be assigned to SCRAP. Plaintiff seeks equitable relief in the form of an order directing defendants to review the files of any convicted class members whose attorney was the subject of a disciplinary proceeding (including plaintiff) to determine whether there is grounds for a petition for postconviction relief and the payment of all fees and expenses associated with seeking such post-ORDER conviction relief.[1] Defendants seek dismissal of all of plaintiff's claims.

Where, as here, a motion under Fed.R.Civ.P. 12(c) is used to raise the defense of failure to state a claim, the Court's review is the same as it would have been had the motion been filed under Fed.R.Civ.P. 12(b)(6). McGlinchy v. Shell Chem. Co. , 845 F.2d 802, 810 (9th Cir. 1988). Although the Court's review under Rule 12(b)(6) is generally limited to the contents of the complaint ( Campanelli v. Bockrath , 100 F.3d 1476, 1479 (9th Cir. 1996)), Ninth Circuit authority allows the Court to consider documents referenced extensively in the complaint, documents that form the basis of plaintiffs' claim, and matters of judicial notice when determining whether the allegations of the complaint state a claim upon which relief can be granted ( United States v. Ritchie , 342 F.3d 903, 908-09 (9th Cir. 2003)). The Washington Court of Appeals decision and the court records related to plaintiff's Pierce County acquittal fall within one or more of these categories. For purposes of this motion, therefore, the allegations of the complaint and the contents of these documents are accepted as true and construed in the light most favorable to plaintiff. In re Syntex Corp. Sec. Litig. , 95 F.3d 922, 925-26 (9th Cir. 1996); LSO, Ltd. v. Stroh , 205 F.3d 1146, 1150 n.2 (9th Cir. 2000).

The question for the Court is whether the well-pled facts in the complaint sufficiently state a "plausible" ground for relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although a complaint need not provide detailed factual allegations, it must offer "more than labels and conclusions" and contain more than a "formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555. If the complaint fails to state a cognizable legal theory or fails to provide sufficient facts to support a claim, dismissal is appropriate. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).

Having reviewed the papers submitted by the parties, the Court finds as follows:


In June 2008, plaintiff was charged with identity theft in King County Superior Court. Pursuant to its contract with King County, SCRAP undertook plaintiff's defense and assigned Seth Conant to represent plaintiff. In June 2009, attorney Kate Lynn moved to Washington, was hired by SCRAP, and substituted as counsel for plaintiff. At the time, Lynn was subject to disciplinary proceedings before the Supreme Court of Pennsylvania related to an overdraft on a client trust account. SCRAP failed to inquire regarding the pendency of any disciplinary proceedings before hiring Lynn. Plaintiff was unaware that Lynn was the subject of disciplinary proceedings while she was representing him and would have objected to the representation had he known.

Plaintiff was tried on the identity theft charge in February 2010. Plaintiff alleges that the representation provided by Lynn during trial was ineffective for three reasons. First, she was the subject of the above-described disciplinary proceedings in Pennsylvania and should therefore be deemed per se unqualified to provide representation. Second, Lynn failed to object to questioning regarding plaintiff's appearance of truthfulness and/or forthrightness.[2] Third, Lynn did not obtain her client's approval before informing the King County Superior Court that double jeopardy did not preclude the prosecution and failing to create a record that would preserve that issue on appeal. Plaintiff was found guilty and sentenced on April 13, 2010. Lynn left SCRAP's employ shortly thereafter. Plaintiff appealed the conviction and was represented by an appellate expert from a different firm. Appellate counsel argued that Lynn was ineffective when she failed to object to the question regarding truthfulness and that the state was collaterally estopped from pursuing the identity theft charges because plaintiff had been acquitted of similar charges in Pierce County. The Washington Court of Appeals found that the detective's opinion regarding plaintiff's demeanor was not an explicit or nearly explicit opinion on plaintiff's guilt and did not invade the right to a jury. Even if the questioning were objectionable, the appellate court would not have found reversible error because Lynn's failure to object was deemed tactical and based on a desire to avoid drawing the jurors' attention to the testimony. The state court rejected the collateral estoppel argument because the record contained no evidence regarding the Pierce County prosecution. Plaintiff's conviction was affirmed on January 17, 2012.[3]

Lynn was disbarred in Pennsylvania on December 22, 2011, and in Washington on June 12, 2012. Plaintiff alleges that he learned of Lynn's disciplinary problems at some unspecified time in 2012. Plaintiff filed this action on August 2, 2013.


A. Sixth Amendment of the United States Constitution

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." The right to the assistance of counsel requires more than simply having "a person who happens to be a lawyer... present at trial alongside the accused." Strickland v. Washington , 466 U.S. 668, 685 (1984). Counsel must be capable of "playing a role that is critical to the ability of the adversarial system to produce just results." Id . In order to prove that counsel's assistance was constitutionally inadequate, a defendant must show that counsel's performance (a) fell below an objective standard of reasonableness and (b) prejudiced the defense. Id. at 687. Judicial scrutiny of ineffective assistance of counsel claims must be highly deferential, however, in order to eliminate "the distorting effects of hindsight." Id. at 689. The reasonableness of counsel's challenged conduct must be determined based on the facts of the particular case, viewed as of the time of counsel's decision. Id. at 690. The analysis must start with a strong presumption that counsel's performance was sound trial strategy that fell within the wide range of reasonably effective assistance. Id. at 689-90. Even if a constitutional deficiency is identified, reversal of a conviction will occur only if defendant shows "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.

1. Pending Disciplinary Proceedings

To the extent plaintiff is asserting that Lynn was ineffective because there were disciplinary proceedings pending against her while she was representing plaintiff (and other absent class members), the claim fails as a matter of law. The mere pendency of disciplinary proceedings does not necessarily mean that counsel is unqualified or impaired in any way: the vast majority of disciplinary actions involve a failure to pay an annual fee, a failure to take continuing legal education classes, or a recordkeeping failure, deficiencies that are easily remedied and do not reflect adversely on an attorney's legal acumen. See Young v. Runnels , 435 F.3d 1038, 1043 (9th Cir. 2006) ("[M]erely because [a lawyer] is subject to disciplinary proceedings while representing a client does not mean that he is presumptively incapable of providing effective assistance."). The fact that an attorney is subject to disciplinary proceedings is not a substitute for the factual showing required under Strickland. There is no per se rule that attorney discipline, even suspension or disbarment during the representation at issue, automatically constitutes ineffective assistance of counsel. United States v. Mouzin , 785 F.2d 682, 696-98 (9th Cir. 1986) ...

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