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Kansas Supreme Court Discusses A Lawyer’s Failure to Argue For A Change in the Law

State v. Roat, 466 P.3d 439 (Kansas 2020) is an unlikely case to provide an interesting discussion of a legal malpractice issue. Roat, having served his sentence, argued that his sentence for a crime had been computed incorrectly. The court held the appeal was moot. Roat tried to argue that his lawyers committed malpractice but the court rejected that argument as well. The discussion is thoughtful and the court concludes that a lawyer does not have a duty to argue for a change in the law.

Roat provides little in the way of the details of what he might assert as a factual basis for a legal malpractice claim. He leaves it to the appellate courts to flesh out the nature of his claims against his trial counsel. Failure to brief an analytic framework sufficiently for effective appellate review is tantamount to not raising the issue at all. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013)State v. Easterling, 289 Kan. 470, 487, 213 P.3d 418 (2009). A party should not leave the court “to guess about the specifics of how [a party] would frame his arguments….” State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).

We are reluctant to try to put flesh onto the skeleton of a hypothetical legal malpractice claim that Roat suggests creates an interest sufficient to defeat mootness. It may be that he would argue that his attorney should have made the arguments that appellate counsel successfully made in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). If Roat’s trial attorney had successfully made those arguments, then, the reasoning might be, he would have spent less time incarcerated.

Although Roat did not object to the scoring of his criminal history prior to sentencing, the failure to object to a criminal history score does not preclude a defendant from appealing the legal effect of prior convictions upon the calculation of his or her criminal history score. See State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015)Dickey, 301 Kan. 1018, Syl. ¶¶ 3-4, 350 P.3d 1054.

But there is a difference between correcting an illegal sentence based on newly articulated law and pursuing a legal malpractice action based on newly articulated law. Roat was sentenced in April 2012. The Court of Appeals issued its opinion in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230, on June 27, 2014. Roat would have to allege malfeasance by his trial counsel for not urging the adoption of a new law.

Research does not reveal any Kansas cases allowing legal malpractice claims based on failure to make arguments that represent a change in law. Other states and legal treatises have taken the position that failing to make an argument that later proved to be good law is not grounds for malpractice.

In Minkina v. Frankl, 86 Mass. App. Ct. 282, 289, 16 N.E.3d 492 (2014), the court held that it is not legal malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent. The court cited Davis v. Damrell, 119 Cal. App. 3d 883, 888, 174 Cal. Rptr. 257 (1981) (failure to anticipate “`180 degrees shift in law’ cannot serve as the basis for professional negligence” [citation omitted]); Kaufman v. Stephen Cahen, P.A., 507 So. 2d 1152, 1153 (Fla. Dist. Ct. App. 1987) (“[A]n attorney’s failure to accurately predict changes on an unsettled point of law is not actionable”); Howard v. Sweeney, 27 Ohio App. 3d 41, 43-44, 499 N.E.2d 383 (1985) (“Counsel’s failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional 451*451 negligence.”); 4 Mallen, Legal Malpractice § 33.5 (2020) (“The rule is that an attorney is not liable for an error in judgment concerning a proposition of law that is debatable, uncertain, unsettled, or tactical.”).

We determine that this is the proper rule. Otherwise, lawyers and their insurance carriers will find themselves in a perpetual guessing game, wondering what new statement of law they must argue in order to avoid liability. The issue would become even more confused with issues in which the courts do not take a direct line to a conclusion, as has been the case with Murdock and Keel.

We, therefore, conclude that Roat has failed to present the appellate courts with an adequate theory of his malpractice action to justify an appellate determination of the correctness of the sentence that he has fully served. His hypothetical malpractice is more “hope” than substance. See Christopher, 536 U.S. at 416, 122 S.Ct. 2179. His claim does not preclude application of the mootness doctrine.

Comment: While this is not a traditional malpractice case, this is an excellent discussion of the judgment call defense.

Ed Clinton, Jr.

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