Glaze v. Larsen

SUPREME COURT OF ARIZONA
En Banc

JAMES R. GLAZE, JR., a married ) Arizona Supreme Court
man, ) No. CV-02-0375-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CV 2001-0196
)
ERIC A. LARSEN, ) Pima County Superior
) Court
Defendant/Appellee. ) No. C-20006235
)
__________________________________) O P I N I O N

Appeal from the Superior Court of Pima County
The Honorable Jane L. Eikleberry, Judge

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division Two
203 Ariz. 399, 55 P.3d 93

VACATED

THE KERLEY FIRM, P.C. Sierra Vista
By: James K. Kerley
Attorney for Appellant

CHANDLER, TULLAR, UDALL & REDHAIR, LLP Tucson
By: Peter Akmajian
Attorney for Appellee

ENGELMAN BERGER, P.C. Phoenix
By: William H. Anger
Attorney for Amicus Curiae
Arizona Association of Defense Counsel
H U R W I T Z, Justice

¶1 This case requires us to decide when a cause of action

accrues for legal malpractice occurring in the course of

criminal litigation. We granted review because the issue is one

of first impression in Arizona and is of statewide importance.

We have jurisdiction pursuant to Article 6, Section 5(3) of the

Arizona Constitution, Arizona Rule of Civil Appellate Procedure

23, and Arizona Revised Statutes (“A.R.S.”) § 12-120.24 (2003).

I.

¶2 James R. Glaze was convicted in superior court of one

count of sexual abuse and was sentenced to a one-year term of

probation. Eric A. Larsen represented Glaze in the trial

proceedings. Larsen also represented Glaze on his direct

appeal, in which the court of appeals affirmed the conviction.

State v. Glaze, 2 CA-CR 96-0145 (Ariz. App. Jan. 14, 1997) (mem.

decision).

¶3 Glaze, no longer represented by Larsen, then filed a

petition in the superior court under Arizona Rule of Criminal

Procedure 32 for post-conviction relief. The Rule 32 petition

alleged that Larsen had provided ineffective assistance of

counsel by failing to request a jury instruction regarding “lack

of sexual motivation.” The superior court dismissed the

petition. The court of appeals granted Glaze’s petition for

review, but initially denied relief. State v. Glaze, 2 CA-CR

2
97-0400-PR (Ariz. App. June 23, 1998) (mem. decision). On

September 30, 1998, however, the court of appeals granted a

motion for reconsideration and held that Glaze had stated a

“colorable claim of ineffective assistance of counsel.” The

case was remanded to superior court for an evidentiary hearing.

¶4 On remand, the superior court found that Larsen had

been ineffective in failing to request the jury instruction and

granted Glaze a new trial. Glaze then filed a motion to dismiss

the charges with prejudice. The superior court granted the

motion to dismiss on July 6, 1999.

¶5 On December 14, 2000, Glaze filed suit against Larsen,

alleging that Larsen’s negligence had caused the criminal

conviction. The superior court granted Larsen’s motion to

dismiss, holding that Glaze’s claim was barred by the two-year

statute of limitations in A.R.S. § 12-542 (2003), which provides

that negligence actions “shall be commenced and prosecuted

within two years after the cause of action accrues.” The trial

court found that the cause of action had accrued on September

30, 1998, the date the court of appeals held that Glaze had a

colorable claim for ineffective assistance of counsel.

¶6 The court of appeals reversed. Glaze v. Larsen, 203

Ariz. 399, 55 P.3d 93 (App. 2003) (Florez, J.). The opinion

below relied heavily on Amfac Distribution Corp. v. Miller, 138

Ariz. 155, 673 P.2d 795 (App.) (“Amfac I”), approved as

3
supplemented, 138 Ariz. 152, 673 P.2d 792 (1983) (“Amfac II”),

which held that a cause of action for legal malpractice in a

civil case did not accrue until the underlying civil

proceedings, including all appeals, had concluded. The court of

appeals determined in this case that Glaze’s malpractice claim

similarly did not accrue until the criminal proceedings against

him were concluded by the order of dismissal entered by the

superior court. Because that order was entered on July 6, 1999,

the court of appeals held that Glaze’s malpractice suit, filed

on December 14, 2000, was commenced within two years after the

cause of action accrued. Glaze, 203 Ariz. at 404 ¶ 16, 55 P.3d

at 98.

¶7 Judge Pelander concurred in the result, but only

because he felt constrained to do so by Amfac I and Amfac II.

Id. at 404 ¶ 18, 55 P.3d at 98 (Pelander, J., concurring). Left

to his own devices, Judge Pelander would have adopted the “two-

track” approach of Coscia v. McKenna & Cuneo, L.L.P., 25 P.3d

670 (Cal. 2001). Glaze, 203 Ariz. at 405, 406-07 ¶¶ 24, 27-28,

55 P.3d at 99, 100-01. Coscia held that a cause of action for

legal malpractice accrues as soon as the plaintiff has actual or

constructive notice of his attorney’s wrongful conduct. 25 P.3d

at 680. If, however, the malpractice plaintiff’s criminal

proceedings are still ongoing at the time the plaintiff files

his malpractice suit, the trial court may stay the malpractice

4
action while the plaintiff pursues his post-conviction remedies.

Id.

¶8 Judge Brammer dissented, concluding that Glaze’s cause

of action had accrued no later than April 23, 1997, the date on

which he filed his Rule 32 petition alleging ineffective

assistance of counsel. Glaze, 203 Ariz. at 408 ¶ 36, 55 P.3d at

102 (Brammer, J., dissenting). Although he assumed that the

Amfac rule requiring termination of the underlying proceedings

applied in the context of a malpractice action arising out of a

criminal prosecution, id. at 407 ¶ 31, 55 P.3d at 101, Judge

Brammer believed that Glaze’s criminal case had concluded at the

termination of his direct appeal, id. at 407-08 ¶¶ 33-34, 55

P.3d at 101-02.

II.

¶9 The parties agree that Glaze’s suit is governed by the

two-year statute of limitations in A.R.S. § 12-542. See Kiley

v. Jennings, Strouss & Salmon, 187 Ariz. 136, 139, 927 P.2d 796,

799 (App. 1996). Section 12-542 provides that certain actions

“shall be commenced and prosecuted within two years after the

cause of action accrues.” (Emphasis added.) Other Arizona

statutes of limitation have identical language. See, e.g.,

A.R.S. §§ 12-541 to –544, -546, -548 (2003) (requiring that

various actions be commenced within a specified time “after the

cause of action accrues”). But these statutes of limitation do

5
not purport to define when a cause of action “accrues.” Rather,

under § 12-542 and the other general limitations statutes, that

analysis has been left to judicial decision.

¶10 The determination of when a cause of action accrues

requires an analysis of the elements of the claim presented.

For example, it has long been settled that an essential element

of a claim for malicious prosecution is that the prosecution

terminate in favor of the plaintiff. See Overson v. Lynch, 83

Ariz. 158, 161, 317 P.2d 948, 949 (1957). Therefore, for

purposes of the one-year statute of limitations governing

malicious prosecution claims, A.R.S. § 12-541, this cause of

action does not accrue until the underlying prosecution has

terminated in favor of the plaintiff. See Owen v. Shores, 24

Ariz. App. 250, 251, 537 P.2d 978, 979 (1975).

¶11 No Arizona case addresses when a cause of action

accrues when the allegation is that a lawyer’s malpractice has

caused the plaintiff’s criminal conviction. Our cases, however,

have repeatedly addressed when a cause for legal malpractice in

the civil context accrues. We first turn to an analysis of

those cases.

A.

¶12 As with all negligence claims, a plaintiff asserting

legal malpractice must prove the existence of a duty, breach of

duty, that the defendant’s negligence was the actual and

6
proximate cause of injury, and the “nature and extent” of

damages. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300,

303 (App. 1986). A necessary part of the legal malpractice

plaintiff’s burden of proof of proximate cause is to establish

that “but for the attorney's negligence, he would have been

successful in the prosecution or defense of the original suit.”

Id.

¶13 Given these elements of the tort claim, a legal

malpractice claim accrues when “(1) the plaintiff knows or

reasonably should know of the attorney’s negligent conduct; and

(2) the plaintiff’s damages are ascertainable, and not

speculative or contingent.” Kiley, 187 Ariz. at 139, 927 P.2d

at 799. Because an essential element of the claim is that the

plaintiff was injured by the attorney’s malpractice,

“[n]egligence alone is not actionable; actual injury or damages

must be sustained before a cause of action in negligence is

generated.” Amfac II, 138 Ariz. at 153, 673 P.2d at 793.

¶14 The Amfac decisions applied these general principles

to a claim that an attorney’s negligence in failing to name a

proper plaintiff resulted in the dismissal of a lawsuit. See

Amfac I, 138 Ariz. at 155, 673 P.2d at 795. The plaintiff filed

suit more than two years after discovering the attorney’s

negligence, but less than two years after the conclusion of the

appeal in the underlying civil action. Id. at 156, 673 P.2d at

7
796. Thus, the issue was “when a cause of action accrues for

legal malpractice which occurs during the course of litigation.”

Amfac II, 138 Ariz. at 153, 673 P.2d at 793. We held that the

cause of action did not accrue “until the appellate process is

completed or is waived by a failure to appeal.” Id. at 154, 673

P.2d at 794.

¶15 This holding was directly tied to the basic elements

of the legal malpractice tort. The defendant in Amfac asserted

that the plaintiff’s cause of action had accrued when the

plaintiff knew or should have known of the defendant’s negligent

conduct. Id. That argument, however, ignored “one of the

essential elements of a claim for negligence — injury to the

plaintiff.” Amfac I, 138 Ariz. at 156, 673 P.2d at 796. A

claim of legal malpractice requires more than negligence by an

attorney; in addition, “actual injury or damages must be

sustained before a cause of action in negligence is generated.”

Amfac II, 138 Ariz. at 153, 673 P.2d at 793; id. at 154, 673

P.2d at 794 (“[E]ven where a plaintiff has discovered actual

negligence, if he has sustained no damages, he has no cause of

action.”). While the underlying civil case is still pending on

appeal, the possibility always exists that the malpractice

plaintiff will eventually prevail in the civil litigation. See

Amfac I, 138 Ariz. at 156, 673 P.2d at 796 (“Apparent damage may

vanish with successful prosecution of an appeal and ultimate

8
vindication of the attorney’s conduct by an appellate court.”);

see also Phillips, 152 Ariz. at 418, 733 P.2d at 303 (noting

that a legal malpractice plaintiff must prove that but for

attorney negligence the plaintiff would have prevailed on its

claim or defense in the underlying lawsuit). Thus, one of the

critical elements of the tort claim, “the injury or damaging

effect” to the client caused by the lawyer’s negligence, “is not

ascertainable until the appellate process is completed or is

waived by a failure to appeal.” Amfac II, 138 Ariz. at 154, 673

P.2d at 794.1

B.

¶16 In addition to correlating the accrual of the cause of

action for legal malpractice to the presence of the elements of

the tort, the Amfac decisions recognized several practical

difficulties inherent in legal malpractice actions arising out

of alleged negligence in handling litigation. First, “[e]ven

1
In contrast, when a legal malpractice action arises in
a non-litigation context, the cause of action accrues when the
plaintiff knew or should have known that its attorneys had
provided negligent legal advice, and that the attorneys’
negligence was the direct cause of harm to the plaintiff,
notwithstanding that the plaintiff’s damages may not have been
fully ascertainable at that time. Commercial Union Ins. Co. v.
Lewis and Roca, 183 Ariz. 250, 252-53, 902 P.2d 1354, 1356-57
(App. 1995). This is because the harm is “irremedial” or
“irrevocable” at that point and will not be avoided by a future
appeal or other court proceedings. Id. at 254, 902 P.2d at 1358
(quoting Amfac I, 138 Ariz. at 156, 673 P.2d at 796, and Amfac
II, 138 Ariz. at 154, 673 P.2d at 794).

9
where an attorney’s performance in litigation is obviously poor,

most clients would not be able to make an informed judgment

whether the conduct constitutes malpractice” until “the

litigation is terminated and the client’s rights are ‘fixed.’”

Amfac I, 138 Ariz. at 157, 673 P.2d at 797. More importantly,

if the cause of action were to accrue at the time of the

allegedly negligent conduct, rather than at the time the damage

became “irremedial,” a client would often be required to file

suit while the original case was proceeding through the courts

and consequently would be forced to obtain either new or

additional counsel in the underlying litigation. “Nothing could

be more destructive of the attorney-client relationship.” Id.

at 158, 673 P.2d at 798.

¶17 The Amfac rule also serves important goals of judicial

efficiency. If the cause of action for legal malpractice were

to accrue at the time of the allegedly negligent conduct,

malpractice plaintiffs might well be required to file suit while

their underlying litigation was still pending. Moreover,

plaintiffs would be required to argue in their malpractice suits

that the underlying case would have had a different outcome in

the absence of their attorney’s negligence. The trial of the

malpractice claim would therefore involve the very evidence that

had yet to be presented in the trial of the underlying matter.

And even when the trial of the underlying matter has been

10
completed before a malpractice claim is filed, the trial court

in the malpractice action will be forced to go through the

exercise of determining how a case would have come out in the

absence of the alleged malpractice at the same time that the

parties are awaiting an appellate decision that may well answer

that very question or remand the case for a new trial.

¶18 These problems are avoided by the Amfac approach,

which requires the final termination of the underlying

litigation before the malpractice cause of action accrues. At

least in some cases, this approach will make a malpractice suit

unnecessary, either because the underlying litigation eventually

is resolved in favor of the malpractice plaintiff, or because

the appellate process has made plain that the result in the

underlying litigation would have been the same even absent the

attorney’s alleged malpractice. The Amfac rule thus not only

prevents premature litigation, but at least potentially prevents

the filing of wholly unnecessary malpractice lawsuits.

III.

A.

¶19 Glaze’s claim in this litigation necessarily is that

he would not have suffered the criminal conviction but for

Larsen’s negligence. See Restatement (Third) of the Law

Governing Lawyers § 53 cmt. d (2000) (“A convicted criminal

defendant suing for malpractice must prove both that the lawyer

11
failed to act properly and that, but for that failure, the

result would have been different . . . .”). Thus, many of the

same concerns over judicial efficiency and proof of the

existence of damage that motivated the Amfac rule, requiring

termination of the underlying civil litigation as a prerequisite

to institution of a legal malpractice action, are also present

in the criminal context.

¶20 But there is an important difference between civil and

criminal procedure with respect to the alleged errors of

counsel. In the civil context, a party generally cannot obtain

post-judgment relief because of the inexcusable neglect of

counsel. See Panzino v. City of Phoenix, 196 Ariz. 442, 445 ¶

7, 999 P.2d 198, 201 (2000). But a criminal defendant who

believes that his conviction was the result of his attorney’s

ineffective assistance may raise such claims through a petition

under Rule 32 for post-conviction relief. See State v. Spreitz,

202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002) (holding that

ineffective assistance of counsel claims must be raised in Rule

32 proceedings, not in a direct appeal).

¶21 Such post-conviction proceedings in the criminal case

may well establish that any alleged negligence by counsel was

not the cause of the conviction, either because the attorney did

not depart from the applicable standard of care or because the

conviction would have ensued in any event. See Strickland v.

12
Washington, 466 U.S. 668, 688, 693 (1984) (holding that

defendant claiming ineffective assistance of counsel must prove

that attorney failed to provide reasonably effective assistance

“under prevailing professional norms” and that any such

departures “actually had an adverse effect on the defense”).

Although the standard of proof imposed under Strickland arguably

does not correspond precisely to the burden placed on a

plaintiff in a legal malpractice action, the inquiry in each

case is at the very least so similar that post-conviction

proceedings often will provide definitive guidance as to whether

any alleged legal malpractice actually occurred and/or was the

cause of the defendant’s conviction. See McCord v. Bailey, 636

F.2d 606, 609 (D.C. Cir. 1980) (holding that legal standards for

ineffective assistance of counsel and for legal malpractice are

equivalent); Shaw v. State, 816 P.2d 1358, 1361 n.4 (Alaska

1991) (noting that the standards are “similar”).2 Thus, a rule

that requires termination of the underlying criminal proceedings

2
In a legal malpractice action, the plaintiff has the
burden of demonstrating by a preponderance of the evidence that
“but for the attorney's negligence, he would have been
successful in the prosecution or defense of the original suit.”
Phillips, 152 Ariz. at 418, 733 P.2d at 303. In a post-
conviction criminal proceeding, the defendant is not required to
show that counsel’s conduct actually altered the outcome of the
case, but rather “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
693-94. We need not decide today whether there is any
difference, practical or theoretical, between these standards.

13
will conserve judicial resources; the outcome of post-conviction

proceedings will often demonstrate that no malpractice suit will

lie.3

¶22 Other practical concerns also support a rule

preventing accrual of criminal malpractice actions while the

underlying case is still being litigated. If the criminal

defendant were required to institute a civil malpractice suit

while his case was still pending in the courts, counsel might

well be disqualified from further handling of the criminal case,

or at the very least be discouraged from doing so. It is also

quite likely that even if the attorney remains on the case after

being made a party in the civil suit, he would be distracted

from the job before him by defending against the civil

negligence claims. See Shaw, 816 P.2d at 1361. We are well

aware of the litigious nature of many prisoners; a rule that

encouraged the early filing of malpractice suits against counsel

unsuccessful at trial would likely have a severe and negative

impact on the functioning of the criminal justice system, which

necessarily relies heavily on appointed counsel and public

3
We are not confronted today with the issue of whether
the determination in a post-conviction relief proceeding that
ineffective assistance of counsel has been provided has a
preclusive effect in a subsequent civil case alleging
malpractice. See Restatement (Third) of the Law Governing
Lawyers § 53 cmt. d (“A judgment in a postconviction proceeding
is binding in the malpractice action to the extent provided by
the law of judgments.”).

14
defenders’ offices to provide indigent defense at trial and on

direct appeal. If appointed trial counsel are frequently

disqualified from handling a case on appeal because a

disgruntled client has filed a malpractice action, the public

will be forced to bear increased costs when new counsel take

over, as the latter will almost certainly be required to begin

from scratch in order to familiarize themselves with past

proceedings in the matter. Moreover, defense counsel would

routinely have numerous malpractice claims pending against them,

with a resulting negative effect on their professional liability

insurance premiums.

¶23 Thus, we see no reason to depart from the principles

announced in Amfac in the context of allegations of malpractice

in a criminal proceeding. Just as the malpractice cause of

action in the civil context does not accrue until all

proceedings in the underlying civil case, including appeals, are

terminated, a claim that an attorney’s malpractice resulted in

the conviction of a criminal client does not accrue until the

complete termination of the criminal proceedings. Those

proceedings include not only the direct appeal, but also any

proceedings involving petitions under Rule 32 and any retrials,

appeals from judgments in retrials, or post-conviction

proceedings following retrials. See Ariz. R. Crim. P. 32.3

15
(“[Rule 32 proceedings are] part of the original criminal action

and not a separate action.”).

B.

¶24 The accrual of a cause of action for malpractice in

the course of criminal representation depends not only on the

fact that the underlying criminal proceedings have been

terminated, but also on how they were terminated. Because an

essential element of the malpractice claim is that the plaintiff

would not have been convicted in the criminal action but for his

attorney’s negligence, the malpractice suit is in essence a

collateral attack on the conviction. Principles of finality and

respect for judgments have led “most jurisdictions addressing

the issue” to conclude that “a convicted defendant seeking

damages for malpractice causing a conviction must have had that

conviction set aside” as a prerequisite to obtaining damages in

a malpractice action. Restatement (Third) of the Law Governing

Lawyers § 53 cmt. d.

¶25 The decisions from other jurisdictions addressing this

issue vary somewhat in their language. See, e.g., Shaw, 816

P.2d at 1360 & n.3 (concluding that “post-conviction relief” is

a prerequisite to filing a legal malpractice claim); Steele v.

Kehoe, 747 So. 2d 931, 933 (Fla. 1999) (holding that “a

convicted criminal defendant must obtain appellate or

postconviction relief as a precondition to maintaining a legal

16
malpractice action” and that “the statute of limitations on the

malpractice action has not commenced until the defendant has

obtained final appellate or postconviction relief”); Johnson v.

Schmidt, 719 S.W.2d 825, 826 (Mo. 1986) (holding that a criminal

defendant must first be “successful in securing post-conviction

relief upon a finding that he was denied effective assistance of

counsel” before bringing a legal malpractice claim); Stevens v.

Bispham, 851 P.2d 556, 566 (Or. 1993) (holding that malpractice

plaintiff must “allege ‘harm’ in that the person has been

exonerated of the criminal offense through reversal on direct

appeal, through post-conviction relief proceedings, or

otherwise”); Adkins v. Dixon, 482 S.E.2d 797, 801 (Va. 1997)

(holding that successful post-conviction relief was a part of

the legal malpractice cause of action, and therefore, the

statute of limitations did not begin to run until post-

conviction proceedings had terminated). Despite the various

wording of the holdings in these cases, each agrees either

expressly or implicitly on one critical point — an element of

the cause of action for legal malpractice is that the criminal

conviction has been set aside, and the cause of action for

malpractice does not accrue until that has occurred.

¶26 While some cases suggest that the conviction must be

reversed through a particular post-judgment proceeding, we

believe such a rule unnecessary. Convictions can be vacated in

17
a variety of ways. It would make little sense to allow one

criminal defendant injured by his counsel’s malpractice to sue

if the conviction were reversed in a Rule 32 post-conviction

proceeding for ineffective assistance, while denying the same

right to a defendant whose conviction was vacated on some other

basis on direct appeal, or to one whose conviction was vacated

without the necessity of a Rule 32 ineffectiveness petition

because the State agreed to set aside the conviction upon

discovering proof of actual innocence. The requirement that the

conviction be set aside arises from our respect for the finality

of the judgment in the criminal case. If that judgment is

vacated by any lawful means, the plaintiff should not be barred

from pursuing civil remedies against counsel simply because of

the form of the reversal.

¶27 Rather, “any post-conviction relief suffices,” Shaw,

816 P.2d at 1360 n.3, as long as the underlying criminal

proceedings are thereby terminated favorably to the defendant.

While we need not delineate today all the methods by which such

a favorable termination may occur, the law governing suits for

malicious prosecution provides ample useful guidance on this

score. See Restatement (Second) of Torts § 659 (1977) (listing

ways in which a criminal proceeding can be terminated in favor

of the accused sufficient to allow a suit for wrongful

prosecution); id. at §§ 660, 661 (listing “indecisive”

18
terminations); cf. Heck v. Humphrey, 512 U.S. 477, 485-86 (1994)

(holding that in a 42 U.S.C. § 1983 action alleging malicious

prosecution the “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”). In this case, in

which the superior court dismissed the charges against Glaze

with prejudice, there can be no doubt that this requirement was

met.4

C.

¶28 California, while adhering to the majority rule that

“appellate or other postconviction relief [is] a predicate to

recovery in a criminal malpractice action,” Coscia, 25 P.3d at

674, has adopted a “two-track” approach to the statute of

limitations issue, id. at 680. Under this approach, the

4
At least one jurisdiction, California, requires that a
malpractice plaintiff not only have had his conviction set aside
as a prerequisite to filing a malpractice suit, but also that he
then allege and prove “actual innocence” in the ensuing
negligence action. Coscia, 25 P.3d at 672-73. We are not
confronted today with any questions about the substantive level
of proof required in the malpractice suit, and nothing in our
opinion should be read as adopting such a rule. Even a party
unable to prove actual innocence may be injured by attorney
malpractice; it is enough for the recovery of damages to require
that the plaintiff prove that his conviction was proximately
caused by his attorney’s negligence and that the underlying
criminal proceedings, for whatever reason, have terminated in
his favor.

19
malpractice plaintiff is required to file his claim within the

applicable malpractice period even if he has not yet obtained

post-conviction relief; the malpractice suit is then stayed

while the plaintiff pursues such relief. Id.

¶29 Larsen urges us to adopt this “two-track” approach.

He argues that requiring plaintiffs to file suit within two

years after they know or should have known of the lawyer’s

negligence will serve to prevent stale litigation and place

defendants on notice of possible claims. See Ritchie v. Grand

Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805

(1990) (noting that statutes of limitation are aimed at

protecting defendants and courts from stale claims, and at

protecting defendants from prolonged economic or psychological

uncertainty).

¶30 We decline that invitation. At the outset, it is

worth noting that the “two-track” approach in Coscia arose at

least in part from California’s particular statute of

limitations, which required that the malpractice action be

brought no later than four years from the date of the wrongful

act or omission. Coscia, 25 P.3d at 677 (citing Cal. Civ. P.

Code § 340.6(a)). Thus, under California law, the statute of

limitations would have expired in many cases before the criminal

defendant could have obtained the reversal of his conviction.

20
The “two-track” approach thus served to protect the plaintiff

against the loss of his cause of action.

¶31 Unlike the California statute, A.R.S. § 12-542 has no

arbitrary limit on the time in which legal malpractice claims

can be brought. Rather, the only question is when the “cause of

action accrues.” As noted above, the general rule is that a

cause of action accrues when all of the elements of the cause

are present and the plaintiff either knows or should have known

of them. Because we hold that favorable termination of the

criminal proceedings is an element of the cause of action for

malpractice, it logically follows that the cause does not accrue

until favorable termination occurs. Cf. Owen, 24 Ariz. App. at

252, 537 P.2d at 979 (holding that cause of action for malicious

prosecution does not accrue under applicable statute of

limitations until favorable termination of underlying criminal

proceedings).5

5
Larsen also relies upon Gebhardt v. O’Rourke, 510
N.W.2d 900 (Mich. 1994), in support of the “two-track” approach.
But the Michigan statute of limitations requires suit to be
brought within two years of the attorney’s last day of service,
or six months after the plaintiff discovered, or should have
discovered the claim, whichever is later. Id. at 902.
Moreover, in Michigan, the malpractice plaintiff is not required
to obtain post-conviction relief in order to bring the civil
suit. Id. at 905-08. Thus, it was clear in Michigan that the
malpractice cause of action would often accrue while criminal
proceedings were still pending. The “two-track” approach
recognized that both civil and criminal proceedings would
necessarily be pending at the same time, and simply allowed the

21
¶32 Moreover, the “two-track” approach presents serious

problems of judicial administration. It encourages the filing

of malpractice suits that may be unnecessary, because the

criminal defendant/malpractice plaintiff will often ultimately

be unable to obtain a favorable termination in the criminal

action. Although the civil suit may be stayed pending

completion of the criminal proceedings, the stay does not avoid

the conflict problems that will arise when a defendant in a

criminal matter brings suit against his current counsel. And,

because a “two-track” system implicitly assumes that the

malpractice cause of action accrues within two years of the

discovery of counsel’s negligence, malpractice suits will thus

often be required to be filed while cases still are on direct

appeal, thus maximizing the chances for conflict.

¶33 Nor do we believe that the rule we adopt today will

result in the filing of stale claims or seriously impact the

ability of counsel to defend legal malpractice trials. Although

the criminal process may last longer in many cases than civil

proceedings, appeals in complex civil cases may also last for

years; yet Amfac holds that a malpractice claim, even one

arising from actions or omissions early in the representation,

does not accrue until all appeals are complete. As Amfac I

________________________
civil action to be stayed pending resolution of the criminal
case.

22
noted, the dangers of delays are lessened when the alleged

malpractice occurs during litigation, because generally “a

record will have been made of the actions which form the

substance of the later malpractice action” in “court pleadings

or in hearing transcripts” in the underlying litigation. 138

Ariz. at 158, 673 P.2d at 798.6

¶34 Moreover, unlike the civil context, in which the

attorney/defendant may never learn during the underlying

proceedings that his client claims malpractice, criminal counsel

will usually be made aware of such a claim before the criminal

proceedings conclude. Such claims must usually be raised in a

defendant’s first Rule 32 petition, Spreitz, 202 Ariz. at 2 ¶ 4,

39 P.3d at 526, and defense counsel — who may be called as a

witness or otherwise notified of the challenge to his

effectiveness in the Rule 32 petition — will thus usually be put

on notice of a potential malpractice claim.

6
Counsel have ethical obligations to safeguard client
files. See Ariz. R. Sup. Ct. 42, ER 1.15 and 1.16. Thus,
unless different arrangements have been made with the client,
criminal defense counsel routinely will retain client files well
beyond the termination of representation. See Ariz. Comm. on
Rules of Prof’l Conduct Op. 98-07 (June 3, 1998) (stating that
indefinite retention of files “is appropriate in homicide, life
sentence, and lifetime probation matters;” in “most other
matters,” file retention for five years after termination of
representation is appropriate). Therefore, in most if not all
malpractice cases arising out of criminal litigation, the lawyer
will also have access to the case file in preparing a defense.

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 IV.

¶35 For the reasons discussed above, we hold that a cause

of action for legal malpractice that occurs during the course of

criminal litigation does not accrue until proceedings in the

criminal matter have been terminated favorably to the criminal

defendant. In this case, the proceedings so terminated on July

6, 1999, when the superior court dismissed the criminal charges

against Glaze with prejudice. Because the legal malpractice

action was filed on December 14, 2000, it was commenced less

than two years after the cause of action accrued, and thus was

timely under A.R.S. § 12-542.

¶36 The opinion of the court of appeals is vacated, and

this case is remanded to the superior court for further

proceedings consistent with this opinion.

Andrew D. Hurwitz, Justice
CONCURRING:

_
Charles E. Jones, Chief Justice

______
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

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