August 15, 2000, introduction letter from Briggs and Morgan to the Clerk of the Court as to the filing of the following motions, two (2) pages.

August 15, 2000, PLAINTIFF'S MOTION FOR APPOINTMENT OF A LEGAL EXPERT, two (2) pages

August 15, 2000, PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT, twenty-eight, (28) pages. 33 total pages.

Via MESSENGER

Clerk of Court
United States District Court
316 North Robert Street
St. Paul, MN 55101

Re: Lambros v. Faulkner, et. al
Court File No. 98-1621 DSD/JMM

Dear Clerk:

Enclosed herewith for filing is the original and one copy of:

1. Plaintiff s Memorandum in Opposition to Defendants' Comprehensive Motion to Dismiss or For Summary Judgment.

2. Exhibit I - Plaintiff 's Response to Court's Order Dated December 22, 1999, Regarding Discovery and Expert Witnesses, So Court May Issue a Pretrial Scheduling Order As Per Rule 16 and Rule

26(a)(2)(A) and (B) (Docket Entry 52).

3. Exhibit 2 - Plaintiff 's Response to Defendants' Motion to Dismiss or for Summary Judgment, Dated May 11, 1999 and May 19, 1999 (Docket Entries 50 and 54).

4. Affidavit of John Gregory Lambros, Dated August 7, 2000.

5. Affidavit No. Two (2) of John Gregory Lambros as to Corrections Within Affidavit of John Gregory Lambros, Dated August 3, 2000.

End of page 1 of letter

6.Affidavit of Gregory J. Stenmoe.

7. Plaintiff's Motion for Appointment of a Legal Expert.

Thank you.

Very truly yours
Briggs and Morgan

by Gregory J. Stenmoe (signed)

End of page 2 of letter

JOHN GREGORY LAMBROS

Plaintiff

vs.

CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER

SHEILA REGAN FAULKNER

FAULKNER & FAULKNER, Attorneys at Law

and

JOHN & JANE DOE

Defendants

Plaintiff John Gregory Lambros, hereby moves for an Order of this Court for appointment of a legal expert in the above matter. The Plaintiff is proceeding on a pro se basis and he cannot afford to hire counsel to serve as a legal expert in a malpractice cause of action based upon the actions of his former federal public defender. As a result, Plaintiff appeals to this court to appoint a criminal defense attorney to review the history of Plaintiffs criminal case and to form an opinion about the requisite standard of care for an attorney under the circumstances. Defendants have submitted an affidavit of an attorney who will serve as their expert witness and, in the interest of fairness, it is only right that Plaintiff be afforded an opportunity to rebut this testimony.

End of page 1

Plaintiff respectfully requests that the Court order the appointment of an attorney to serve as an expert witness in the above-titled matter.

Dated Augurst 15, 2000
Briggs and Morgan

by Gregory J. Stenmoe (signed)
2400 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
(612) 334-8400

Attorneys for Plaintiff John Gregory Lambros

End of page 2

August 15, 2000, PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT, twenty-nine, (29) pages. 33 total pages

JOHN GREGORY LAMBROS

Plaintiff

vs.

CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER

SHEILA REGAN FAULKNER

FAULKNER & FAULKNER, Attorneys at Law

and

JOHN & JANE DOE

Defendants

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

John Gregory Lambros seeks relief from this Court for the actions of Charles W. Faulkner, his federally-appointed public defender. Mr. Lambros respectfully asks this Court to deny the Defendants' Motion to Dismiss, because Mr. Lambros has stated a claim upon which relief may be granted, and the Defendants' Motion for Summary Judgment, because genuine issues of material fact exist with regard to Mr. Lambros' claims.

Mr. Lambros is currently "IN CUSTODY" serving a 522 year imprisonment for a United States Parole Commission violation that he was arrested on in Brazil, retaking took place, 5,357 days (142 years) and a 360 month (30 years) sentence for convictions on one count of conspiracy to distribute

End of page 1

cocaine and three counts for aiding and abetting the possession of cocaine with intent to distribute. During his criminal trial, Mr. Lambros was represented by Charles W. Faulkner, a

On June 13, 2000, the Tenth Circuit Court of Appeals ORDERED the 5,357 day U.S. Parole Commission Warrant of August 21, 1989, valid. See, LAMBROS vs. BOOKER, et al., No. 00-3118. Mr. Lambros' U.S. Parole Violation detainer "is viewed as a consecutive sentence in the AGGREGATE, not as a discrete segment." See, e.g. GARLOTTE vs. FORDICE, 132 L.Ed2d 36, 43 (1995). Prisoners serving consecutive sentences are "IN CUSTODY" under any one of them. See, e.g. PEYTON vs. ROWE, 20 L.Ed.2d 426, 434-435 (1968). Thus, for purposes of the "CUSTODY" requirement, that is, "consecutive sentences should be treated as a continuous series," so that a prisoner "remains in 'IN CUSTODY' under ALL of his consecutive sentences until all are served. See, e.g. GARLOTTE, Id. at 40. Mr. Lambros' position is that his 30 year sentence Defendant's represented him at is his CONSECUTIVE SENTENCE. This being the case, Mr. Lambros could not of been sentenced to more than fifteen and one-half (152) year sentence due to the U.S.-Brazil Extradition Treaty that requires that no one in Brazil will be sentenced to more than a thirty (30) year sentence. The government's November 16, 1992 WRITTEN PLEA PROPOSAL and Defendant Faulkner's November 17, 1992 letter to Plaintiff Lambros that contained a copy of the government's PLEA PROPOSAL should of stated that Plaintiff Lambros was facing a MAXIMUM sentence of 152 years due to August 21, 1989 U.S. Parole Commission warrant/DETAINER that adversely affected the length of his sentence exposure. Please note that Judge Murphy had JURISDICTION during Plaintiff's PLEA PROPOSAL and/or BARGAINING as to the U.S. Parole Violation Warrant DETAINER that Mr. Lambros was arrested on in Brazil. See e.g. THOMPSON vs. MISSOURI PAROLE BOARD OF PAROLE, 929 F.2d 396, 398-401 (8th Cir. 1991)(DETAINER lodged by Missouri Parole board with MINNESOTA prison gave board custody of petitioner and GAVE MINNESOTA DISTRICT COURT JURISDICTION TO CURE MISSOURI BOARD'S VIOLATION.

Lambros currently has a 30-year sentence with a 8-year term of supervised release, to be served upon release from imprisonment. Thus a 38-year term. See, U.S. vs. ROBERTS, 5 F.3d 365 (9th Cir. 1993). (If Roberts violates the conditions of his supervised release he can be sent back to prison for up to three more years. Title 18 U.S.C. ' 3583(e)(3). Thus, Robert's MAXIMUM sentence is at least twenty (23) years, not twenty (20) years. Because of the term of supervised release, Roberts received a potentially longer sentence than he was apprised of at his plea hearing.)

On June 13, 2000, the Tenth Circuit ORDERED the 5,357 days (142 years) PAROLE VIOLATION WARRANT/DETAINER VALID. See August 21, 1989 U.S. PAROLE COMMISSION WARRANT that Lambros was arrested in BRAZIL.

BRAZIL DOES NOT ALLOW MORE THAN A 30-YEAR SENTENCE. See LambrosSee Lambros August 3, 2000 Affidavit at & 4 and Exhibit A. Also see, U.S. v. Gallo-Chamorro 48 F.3d 502, 503

End of page 2

ADDITION:

38 years

14 2 years

522 years total

Therefore, 222 year sentence MORE than BRAZIL ALLOWS. Subtracting 222 years from the 30-year maximum, equals 72 years, which is consistent with Lambros' belief that he was going to get a 7-year plea agreement.

"ACTUAL PREJUDICE" is a term of art meaning only that REVERSAL on the basis of error CANNOT OCCUR unless (1) some kind of prejudice is found to be present and (2) that finding is based not on a presumption of the prejudice premised on the general type of violation BUT rather on an analysis of the specific facts and circumstances of the proceeding in which the error occurred. See, e.g., UNITED STATES vs. OLANO, 507 U.S. 725-35, 736, 739-41 (1993).

Mr. Lambros alleges that he was subjected to torture while held in the Brazilian prison. The Second Circuit dealt with a case in which Francisco Toscanino, who Mr. Lambros met while in the Brazilian prison, alleged that Brazilian authorities had tortured and interrogated him while he was held in a Brazilian prison. See United States v. Toscanino, 500 F.2d 267 (2nd Cir. 1974). The Second Circuit remanded the case and on remand, the trial court denied Mr. Toscanino's motion to vacate the conviction because Mr. Toscanino did not produce sufficient evidence to show that the United States was an active participant in his abduction, torture and interrogation. See United States v. Toscanino, 398 F. Supp. 916, 916 (E.D.N.Y. 1975).

End of page 3

Footnote 4

Mr. Lambros currently has a motion to add the Defendants' insurance companies as defendants in this case. (Order dated 12/22/1999). See Sachs v. St. Paul Fire & Marine Insurance Co., 303 F.Supp. 1339 (D.D.C. 1969)(the Court held that if any element of the Complaint MIGHT fall within the policy coverage, then the duty to defend applies).

End of page 4

I. Mr. Lambros' Claims Should Not Be Dismissed Pursuant to Rule 12(b)(6) for Failure to State a Claim Because Mr. Lambros Has Stated a Legal Malpractice Claim Upon Which Relief Can Be Granted.

In reviewing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a court should construe all allegations in the complaint as true, and "view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff." St. Croix Waterway Ass'n v. Meyer, 178 F.3d 515, 519 (8th Cir. 1999). The issue regarding a 12(b)(6) motion is not "whether plaintiff will ultimately prevail," but whether the plaintiff will be allowed to produce evidence to support his allegations and causes of action. Richards v. Union Labor Life Ins. Co., 804 F. Supp. 1101, 1102 (D. Minn. 1992). Dismissal on the pleadings is an "extreme remedy" and is disfavored by the courts. Id. As a result, dismissal is warranted "only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations." St. Croix Waterway Ass'n, 178 F.3d at 519 (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)); see also Fed. R. Civ. P. 12(b)(6).

In addition, the federal court system has noted that there is a "well established judicial

Footnotes

5. Because Defendants have submitted materials outside the pleadings in this case, the motion is converted to one for summary judgment. See Fed. R. Civ. Pro. 56(c). Nevertheless, Mr. Lambros will address the merits of the motion.

6. Additional arguments can be found in Exhibit 2, Plaintiff's earlier Response to Defendants' Motion to Dismiss dated May 11, 1999 and May 19, 1999, which are in Affidavit form. (Docket Entries 50 and 54).

End of page 5

A. Mr. Lambros' Complaint Sufficiently Alleges Conduct that Constitutes Legal Malpractice.

"Fatal or not, legal malpractice in criminal cases is all too common." In re Greenfield, 11 Cal. App. 3d 536, 544 (1970). To succeed on a legal malpractice cause of action, Mr. Lambros must show (1) the existence of an attorney-client relationship; (2) the attorney's negligence or breach of contract; (3) the attorney's negligence or breach of contract proximately caused the plaintiff damages; and (4) but for the attorney's conduct, the plaintiff would have prevailed in the cause of action. See Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994) (citing Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983)). In reference to the proximate cause element, the Minnesota Supreme Court stated

For negligence to be a proximate cause of any injury, it must appear that if the act is one

which the party ought, in the exercise of ordinary care, to have anticipated was likely to result

in injury to others, then he is liable for any injury proximately resulting from it, even

though he could not have anticipated the particular injury which did happen.

Id. at 409 (citations omitted); Fletcher v. Zellmer, 909 F. Supp. 678, 682 (D. Minn. 1995) (noting

Footnote 7

Defendants do not dispute the existence of an attorney-client relationship between Mr. Lambros and Mr. Faulkner. (Def. Memo. at 17).

End of page 6

Mr. Lambros' complaint states a claim for legal malpractice in four categories of activities. The standards and causation elements for each are applied as follows:

1. Incorrect sentencing information

Several courts have stated that the standards for a legal malpractice claim and an ineffective assistance of counsel claim are "analogous, if not identical." United States v. James, 915 F. Supp. 1092, 1094 (S.D. Cal. 1996); see also McCord v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980); Shaw v. Alaska, 816 P.2d 1358, 1361, n. 4 (Alaska 1991); Knoblauch v. Kenyon, 415 N.W.2d 286, 289 (Mich. Ct. App. 1987); Boinott v. Minnesota, 582 N.W.2d 243, 245 (Minn. 1998). As a result, factual allegations that form the basis for an ineffective assistance of counsel claim can also support a cause of action for legal malpractice. See 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, ' 25.1, 245-46, n. 1 (4th ed. 1996).

For example, federal appellate courts have held that an attorney's failure to give a criminal defendant accurate information about the maximum sentence or the length of time until parole eligibility constitutes ineffective assistance of counsel. See U.S. v. Grandos, 168 F.3d 343 (8th Cir. 1999) (attorney's failure to read and understand the Sentencing Guidelines prejudiced defendant in that he was sentenced to more time than was permissible under the circumstances); United States v. Gordon, 156 F.3d 376, 380 (2d. Cir. 1998) (noting that providing erroneous information of sentencing exposure constituted a breach of the lawyer's duty to fully advise a client and "fell below the prevailing professional norms" regarding advising a client); Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995) (reversing a grant of summary judgment on the grounds that the attorney did not accurately inform the criminal defendant of his sentence exposure); Hill

End of page 7

Similarly, an error in sentence exposure can form the factual basis for a legal malpractice claim. In Geddie v. St. Paul Fire & Marine Ins. Co., 354 So. 2d 718, 719 (La. Ct. App. 1978), the appellate court affirmed the trial court's oral holding that the attorney's failure to have his client's sentence reduced constituted legal malpractice for which the attorney was liable for the additional period of incarceration. See id. The legal malpractice plaintiff, Geddie, was sentenced to four years for a crime that had a maximum penalty of two years. See id. Mr. Geddie's criminal attorney failed to take any action to have the sentence reduced and the trial court held that this failure constituted legal malpractice for which the attorney was liable to Mr. Geddie. See id.

Footnote 8

References to "Lambros Aff." herein are to Mr. Lambros' August 3, 2000 Affidavit, as corrected and supplemented by Mr. Lambros' August 7, 2000 Affidavit.

End of page 8

End of page 9

2. Failure to investigate

One federal court has noted that an attorney's failure to investigate potentially exculpatory witnesses constitutes ineffective assistance of counsel and most likely constitutes the factual basis for a successful legal malpractice suit. See Sullivan v. Weiner, 1989 U.S. Dist. LEXIS 2557, *5 (N.D. Ill. 1989) (noting that "the facts of this case come exceedingly close to establishing the defendants' malpractice as a matter of law) (hereinafter Weiner) (Stenmoe Aff. Ex. A). In Weiner, the defendant-attorneys neglected to interview five witnesses whose testimony would corroborate Mr. Sullivan, the criminal defendant's, version of the story. See id. at *1. Mr. Sullivan was found guilty of murder and subsequently sentenced to twenty-five years in prison. See id. at *3. After serving eight years of his sentence, Mr. Sullivan was finally released from prison after the Seventh Circuit found the attorneys' failure to investigate and interview the witnesses deprived Mr. Sullivan of his constitutional right to effective assistance of counsel. See id. at *3. The court denied Mr. Sullivan's motion for summary judgment on his legal malpractice claim, but it noted that the attorneys' failure to interview the five witnesses "appears inexplicable." Id. at *6 (denying the motion for summary judgment based on collateral

Footnote 9

Judges also can be mistaken about their ability to downward depart a sentence. See United States v. Monk, 15 F.3d 25, 29 (2nd Cir. 1994). The Second Circuit remanded a case for re-sentencing on the grounds that the trial judge did not appreciate his authority to downwardly depart from the sentencing guidelines in a case where the defendant was convicted of possession of crack cocaine, but was not convicted of possession with intent to distribute. See id.

End of page 10

In addition, a state appellate court has noted that a defendant-attorney's failure to interview a potential witness constituted factual basis upon which to reverse the trial court's grant of summary judgment in favor of the defendant-attorney. See Canady v. Shwartz, 577 N.E.2d 437, 440-41 (Ohio Ct. App. 1989). In Canady, the defendant-attorney determined that the plaintiff's codefendant, who was willing to testify to the criminal defendant's innocence, was an unreliable witness without ever speaking to the codefendant. See id. at 440. The court reversed summary judgment in favor of the attorney because reasonable minds could differ as to whether the "defendant competently fulfilled his duty to plaintiff to thoroughly investigate the facts of the plaintiff's case...." Id. at 440.

In Claim III of his Preliminary Statement, Mr. Lambros alleged that Mr. Faulkner failed to investigate Mr. Lambros' case because Mr. Faulkner did not interview Mr. Lambros' Brazilian attorneys and Brazilian government officials who had information about the torture that Mr. Lambros underwent while in the Brazilian prison awaiting extradition. In Claim IV, Mr. Lambros explained that Mr. Faulkner also failed to investigate by neglecting to hire a local psychologist and by neglecting to set up a medical x-ray for Mr. Lambros. As noted by the Canady court, Mr. Faulkner had a duty to "thoroughly investigate the facts" of Mr. Lambros' case. Canady, 577 N.W.2d at 440. Mr. Faulkner breached his duty to Mr. Lambros because he did not thoroughly investigate any facts related to Mr. Lambros' experiences in Brazil. (Lambros Aff. at 15) Mr. Faulkner could have anticipated that his failure to investigate the facts surrounding Mr. Lambros' extradition, conviction, and imprisonment would be likely to result in

End of page 11

injury to Mr. Lambros. Mr. Lambros has stated a claim upon which relief can be granted because he was convicted and sentenced, and presently "in custody" for a period of 522 years as a result of Mr. Faulkner's failure to investigate, and has suffered damage in the form of the loss of his freedom and other damages. (Lambros Aff. at 27, 28).

3. Failure to become familiar with the applicable extradition law

The American Bar Association Model Rules of Professional Conduct affirmatively require that an attorney be competent when they state that "[a] lawyer shall provide competent representation to a client." ABA Model Rules of Professional Conduct Rule 1.1. The Model Rules also state that "[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." ABA Code of Professional Responsibility DR 6-101 (a)(1) (1980).

In Claims II, VII, VIII, XII, XIII, XIV, XV of his Preliminary Statement, Mr. Lambros stated a claim upon which relief can be granted for Mr. Faulkner's failure to provide competent representation to Mr. Lambros. Mr. Faulkner did not have the requisite knowledge or skill regarding United States and Brazilian extradition law and he neglected to acquire such knowledge and skill. (Lambros Aff. at 10-19). In addition, Mr. Faulkner's failure to research these issues illustrate his lack of thorough preparation in the representation of Mr. Lambros. In fact, in Claim II Mr. Lambros pointed out that Mr. Faulkner's failure to know the law caused Mr. Lambros' family to have to pay legal fees associated with the research and preparation of a motion pursuant to Federal Rule of Criminal Procedure 32. Mr. Lambros repeatedly requested that Mr. Faulkner research and raise several issues regarding extradition law, including the

End of page 12

4. Failure to make certain motions and objections before and during trial

In Claims V, IX, X, Mr. Lambros has stated additional claims upon which relief can be granted for Mr. Faulkner's continued lack of competency in his representation of Mr. Lambros. Mr. Lambros explained that Mr. Faulkner repeatedly failed to file motions to suppress testimony, motions to dismiss the conviction on the grounds of insufficient evidence, and pretrial objections to the sufficiency of the indictment. (Pre. Stat. at 8-9, 11-13). As a result of Mr. Faulkner's failure to make these motions and objections, Mr. Lambros is serving a 522 year "in custody" sentence. Mr. Faulkner could easily foresee that his failure to file these motions and make these

Footnote 10

The doctrine of dual criminality states that no country can try an extradited criminal for an action that is not recognized to be a crime under the extraditing country's law. See United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th Cir. 1995). Mr. Lambros was tried for a parole violation, which is not a crime in Brazil, but Mr. Faulkner did not research or raise this issue. (Lambros Aff. at 49). Mr. Lambros was tried on Counts 5, 6, and 8, which are not crimes in Brazil, but Mr. Faulkner did not research or raise the issue.

Footnote 11

The doctrine of specialty can best be stated as the rule that "the courts of [the United States] will not try a defendant extradited from another country on the basis of a treaty obligation for a crime not listed in the treaty." United States v. Gallo-Chamorro, 48 F.3d 502, 506 (11th Cir. 1995) see also United States v. Pang, 940 P.2d 1293, 1294 (Wash.1997) (addressing the doctrine of specialty in the context of an individual who was extradited from Brazil for arson, but then was tried for first degree murder). Mr. Lambros was tried in the United States for crimes that were not listed in the United States-Brazilian Extradition Treaty because parole violation is not a crime in Brazil, but Mr. Faulkner did not research or raise this issue. (Lambros Aff. at 49).

End of page 13

In conclusion, Mr. Lambros has stated several claims upon which relief can be granted and as a result, Defendant's 12(b)(6) motion to dismiss should be denied.

B. Defendant Charles Faulkner is Not Immune From Legal Malpractice Claims Brought Under Federal Law.

Defendants are correct when they assert that Minnesota law grants public defenders immunity from state legal malpractice claims. (Def. Memo. at 7.) Nevertheless, Defendants are entirely incorrect in their assertion that "there is no federal statutory right to claim legal malpractice." (Def. Memo. at 8.) A plaintiff asserting a claim of legal malpractice against his former federal public defender can bring the claim under the Federal Torts Claims Act. See Sullivan v. United States, 21 F.3d 198, 200-02 (7th Cir. 1994), cert. denied, 115 S. Ct. 670 (1994) (noting that federal public defenders are considered "employees of the government" for the purposes of being covered under the Federal Tort Claims Act); see also 28 U.S.C. '' 2671-80 (2000).

Footnote 12 Mr. Lambros' original complaint dated June 15, 1998 included a reference to a Federal Tort Claims Act claim. On August 18, 1997, Daniel M. Scott, federal public defender, acknowledged Mr. Lambros' Federal Tort Claims Act claim request and stated that "in Ferri v. Ackerman, 100 S.Ct. 402 (1979), the Supreme Court made clear that federally appointed counsel is subject to suit for malpractice." (Lambros Aff. at 43 (Exhibit A. to June 15, 1998 Complaint)).

End of page 14

Footnote 13

In an opinion that has been applied by the Eighth Circuit district courts, the Seventh Circuit has expanded on the scope of both the Federal Tort Claims Act and the Ferri decision. See Sullivan v. United States, 21 F.3d 198, 206 (7th Cir. 1994); Echols v. Dwyer, 914 F. Supp. 325, 327 (E. D. Mo. 1996).

Footnote 14

The dissenting opinion in Dziubak also persuasively argued that public defenders should not be accorded immunity from legal malpractice claims because indigent clients are not given the right to choose their lawyers, "but must depend on whomever is assigned in matters that are of the most extreme gravity." Dziubak, 503 N.W.2d at 778 (Gardebring, J. dissenting). Justice Gardebring criticized the Minnesota Supreme Court for creating "just the kind of two-tier criminal justice system that the Supreme Court hoped to obliterate in its landmark decision, Gideon v. Wainwright, 372 U.S. 335 (1963)." Dziubak, 503 N.W.2d at 778. As a result of the

End of page 15

C. Mr. Lambros' Conviction Does Not Preclude His Pursuit of a Civil Remedy For Damages.

Defendants assert that Mr. Lambros must prove the reversal of his conviction before Mr. Lambros can recover for damages in a civil lawsuit. (Def. Memo. at 10). Nevertheless, several courts have stated that a plaintiff's guilt or innocence is not relevant to the subsequent legal malpractice cause of action. "Although not an essential element of a legal malpractice claim, the requisite causal connection between the alleged negligence and resulting injury may be established by evidence of a conviction which has been subsequently set aside because of counsel's ineptitude." Canady, 577 N.E.2d at 439 (citations omitted) (emphasis added). The Seventh Circuit has gone so far as to note that "[o]nce retained, the attorney is not shielded from liability because of the initial mistake. A criminal defendant suing his attorney for legal malpractice would not be contributorily negligent because he actually had committed the charged

Footnote 14 continued

Minnesota Supreme Court's Dziubak holding, clients who can afford to pay for criminal counsel are not deprived of their right to seek civil redress for injury caused by counsel, yet indigent clients are deprived of this right. See Dziubak, 503 N.W.2d at 778-79.

End of page 16

Also, it is important to note that "[g]uilt usually is irrelevant if the attorney's error concerns the extent or severity of the sentence." 3. Mallen & Smith, supra, at 242. In Geddie, the court affirmed a judgment against an attorney and held him responsible for the excessive portion of the sentence. See Geddie, 354 So. 2d at 721. In these cases, the "but for" element can be satisfied by showing that but for the attorney's negligence, the criminal defendant would have obtained a lesser sentence.

As a result, the Defendants are incorrect when they assert that Mr. Lambros' conviction prevents him from seeking relief for Mr. Faulkner's legal malpractice. (Def. Memo. at 10-13). The fact that Mr. Lambros has been convicted of his criminal charges does not foreclose the possibility of stating a claim upon which relief can be granted for his legal malpractice cause of action against Mr. Faulkner. Mr. Lambros only needs to assert in his pleadings that but for Mr. Faulkner's negligence, Mr. Lambros could have obtained a more favorable outcome. Mr. Lambros did assert that he would have had a more favorable outcome in several instances in his Preliminary Statement. (Pre. Stat. at 8, 10, 19). Mr. Lambros alleged that he would have been acquitted, that he would have had a lesser sentence, and that he would not have been tried for

End of page 17

D. Mr. Lambros' Claims Are Not Subject to Collateral Estoppel Based on Mr. Lambros' Criminal Conviction.

Defendants allege that Mr. Lambros' conviction collaterally estops him from pursuing a civil legal malpractice cause of action for damages. (Def. Memo. at 10). Defendants cite the United States Supreme Court decision in Heck v. Humphrey as support for their collateral estoppel argument, but the Heck opinion only held that "[a] claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under ' 1983." 512 U.S. 477, 487 (1994). Because Mr. Lambros is not bringing a section 1983 claim, Heck does not apply to his situation. Both the Third and Tenth Circuits have recently distinguished Heck vs. Humphry, thus allowing Mr. Lambros to recover damages against Defendants. See, e.g. NELSON vs. JASHUREK, 109 F.3d 142 (3rd Cir. 1997) and MARTINEZ vs. CITY OF ALBUQUERQUE, 184 F.3d 1123, 1125 (10th Cir. 1999). In MARTINEZ vs. CITY OF ALBUQUERQUE, The Tenth Circuit stated, "careful comparison between HECK and the facts of this case demonstrate that to the extent MARTINEZ' federal suit DOES NOT CHALLENGE THE LAWFULNESS OF HIS ARREST AND CONVICTION (a challenge HECK would prohibit at this point), HECK does not bar him from pursuing his civil rights claims in federal court." Id. at 1125. Defendants also rely on the Seventh Circuit decision in Levine v. King for their proposition that Mr. Lambros is collaterally estopped from relitigating the issues that led to his conviction, however the Levine court applied Illinois law, which is not

End of page 18

The few courts that have held that a criminal defendant's failure to prevail on an ineffective assistance of counsel claim bars relitigation of some of the issues involved in the legal malpractice claim, did so because the elements of a legal malpractice claim and an ineffective assistance of counsel claim were substantially similar. See McCord v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980); Zeidwig v. Ward, 548 So. 2d 209, 214 (Fla. 1989); Knoblauch v. Kenyon, 415 N.W.2d 286, 292 (Mich. Ct. App. 1987); see also United States v. James, 915 F. Supp. 1092, 1094 (S.D. Cal. 1996) (noting that the standard for ineffective assistance of counsel is "analogous, if not identical, to the standard for civil malpractice"). In general, collateral estoppel is not applied unless the (1) the same issue is at stake in both cases and (2) the issue was actually litigated and decided in the first suit. See McCord, 636 F.2d at 609. The McCord court applied the doctrine of collateral estoppel to the plaintiff's legal malpractice claim specifically because the legal malpractice claim and the ineffective assistance of counsel claim had similar factual issues and similar legal standards. See McCord, 636 F.2d at 609-10.

Mr. Lambros' ineffective assistance of counsel claim focused on errors and omissions by Mr. Faulkner that led to Mr. Lambros' conviction, whereas Mr. Lambros' malpractice claim focuses on errors and omissions that led to excessive incarceration for Mr. Lambros. Mr. Lambros' criminal case and his civil case do not have the same issues at stake- - the issue in Mr.

Footnote 15

The Minnesota Supreme Court recently declined to rule on the specific issue of whether a criminal defendant seeking post-conviction relief is barred from relitigating issues that arose in a previous legal malpractice lawsuit against his former attorney. See Boitnott, 582 N.W.2d at 245 (noting that because the evidence presented to show that the alleged plea offer existed was insufficient to grant the plaintiff's motion for reversal of summary judgment, there was no need to address the issue of collateral estoppel).

End of page 19

II. Defendants Are Not Entitled to Summary Judgment on Mr. Lambros' Claims Because Genuine Issues of Material Fact Exist With Regard to Mr. Lambros' Claims of Legal Malpractice.

It is well established that summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Pro. 56(c). In determining whether to grant summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Maitland v. University of Minnesota, 43 F.3d 357, 360 (8th Cir. 1994). Additionally, where there has been no opportunity for discovery, courts are especially reluctant to grant summary judgment. See Palmer v. Tracor Inc., 856 F.2d 1131 (8th Cir. 1988) (noting that "if the failure to allow discovery deprives the nonmovant of a fair chance to respond to the motion, however, summary judgment is not proper and will be reversed"); Costlow v. United States, 552 F.2d 560, 564 (3rd Cir. 1977) (noting that "by acting on the motion for summary judgment without argument, and without reference to what might be developed in discovery, which was being diligently pursued, the court erred"). As the Court is well aware, it has stayed discovery in this

Footnote 16

Additional arguments and factual support in opposition to Defendants' Motion can be found in Exhibit 2, Plaintiff's earlier Response to Defendants' Motion to Dismiss dated May 11, 1999 and May 19, 1999, which are in Affidavit form (Docket Entries 50 and 54).

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A. Genuine Issues of Material Fact Exist With Regard to All of Mr. Lambros' Allegations of Legal Malpractice.

As stated earlier, in a cause of action for legal malpractice, a plaintiff must show (1) the existence of an attorney-client relationship; (2) the attorney's negligence or breach of contract; (3) the attorney's negligence or breach of contract proximately caused the plaintiff damages; and (4) but for the attorney's conduct, the plaintiff would have prevailed in the cause of action. See Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994) (citing Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983)).

As noted earlier, Mr. Lambros' legal malpractice claims fall into four factual categories. All of Mr. Lambros' claims have genuine issues of material fact for which summary judgment is improper.

1. Incorrect sentencing information

As discussed earlier, an attorney's failure to give a criminal defendant accurate information about his or her sentence exposure can form the basis for a legal malpractice cause of action. See Geddie, 354 So.2d at 719. With regard to Mr. Lambros' claims, there exist genuine issues of material fact about whether Mr. Faulkner breached his duty to provide Mr. Lambros with accurate sentencing information, whether Mr. Faulkner proximately caused Mr. Lambros' damages, and whether but for Mr. Faulkner's conduct, Mr. Lambros would have

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obtained a more favorable outcome. First, Mr. Faulkner did provide Mr. Lambros with inaccurate sentencing information when he wrote a letter to Mr. Lambros stating that Mr. Lambros was exposed to "a life term without possibility of parole." (June 15, 1998 Complaint, Ex. H). This information was clearly inaccurate and Mr. Lambros suffered "actual prejudice" because the Eighth Circuit had to reduce Mr. Lambros' sentence to conform with the current statutory limitations on the minimum/maximum sentence for the conspiracy charge. See United States v. Lambros, 65 F.3d 698, 699 (8th Cir. 1996). Second, genuine issues of material fact exist regarding whether Mr. Faulkner's actions proximately caused Mr. Lambros damages because Mr. Faulkner could have anticipated that Mr. Lambros was likely to suffer damage as a result of his lack of accurate knowledge while making the decision about whether to accept or reject the government's plea offer. As noted earlier, IF Mr. Faulkner had informed the federal prosecutor and Mr. Lambros that the maximum sentence was actually only 152 years, it is possible that the federal prosecutor would have offered Mr. Lambros a lesser sentence in the plea agreement and Mr. Lambros would have accepted this lesser sentence. (Lambros Aff. at 23, 25). Finally, genuine issues of material fact exist regarding whether "but for" Mr. Faulkner's actions, Mr. Lambros would be serving less jail time because Mr. Lambros may have accepted a plea offer. (Lambros Aff. at 23, 25).

2. Failure to investigate

Moreover, an attorney's failure to thoroughly investigate the circumstances surrounding a

Footnote 17 Pam Lemon, Larry Pebbles, Ralph Amero and Ira Jay Berine, Mr. Lambros' codefendants, were offered and accepted lesser plea agreements or their indictments were dismissed. Pam Lemon received a sentence of 2 months with work release and supervised release for 2 years and on information and belief, the indictments for Larry Pebbles and Ralph Amero were dismissed and Ira Jay Berine received a term of imprisonment of 14 months pursuant to a plea. (Lambros Aff. at 36, 38, 39, 40)

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4. Failure to make certain motions and objections before and during trial

As stated earlier, Mr. Lambros has also alleged genuine issue of material facts regarding whether Mr. Faulkner breached his duty to provide competent representation to Mr. Lambros when Mr. Faulkner (1) failed to file a motion to suppress testimony that was obtained in violation of Title 18 U.S.C. section 201(c)(2); (2) failed to file a motion to dismiss the charges against Mr. Lambros on the grounds that the government did not have sufficient evidence to show that Mr. Lambros was involved in a single transaction of at least five kilograms of cocaine; and (3) failed to make pretrial objections to the sufficiency of the indictment under Title 18 U.S.C. 2 (a). (Lambros Aff.). In addition, there exist genuine issues of material fact regarding whether Mr. Faulkner should have foreseen that his failure to file these motions or make these objections would have been likely to result in damage to Mr. Lambros. Finally, whether Mr. Faulkner's breach of duty constituted the "but for" cause of Mr. Lambros' lengthy incarceration is also a genuine issue of material fact for which a fact finder is needed. (Lambros Aff.).

B. Expert Testimony is Not Needed To Defeat Defendants' Motion For Summary Judgment on the Legal Malpractice Claims.

Defendants assert that Minnesota Statute Section 544.42 requires that a plaintiff asserting a legal malpractice cause of action against his former attorney provide the court with expert testimony. (Def. Memo. at 25). Minnesota Statute Section 544.42 has never been applied by the courts. However, a close reading indicates that the statute does not require expert testimony, it only specifies the process to be used in the event that the plaintiff plans to use expert testimony to support his claims. See Minn. Stat. ' 544.42, subd. 2. The statute states that a party must provide an expert's affidavit "in a action against a professional alleging negligence or malpractice

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Nevertheless, some courts have held that a plaintiff should use expert testimony to establish the requisite standard of care to be applied to the defendant-attorney's actions. See Williams v. Callaghan, 938 F. Supp. 46, 49-50 (D.C. Cir. 1996); Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977); see generally, 4 Mallen & Smith, supra, at 238-39. However, an expert witness is not required if the "attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge." Williams, 938 F. Supp. at 50 (citations omitted) (explaining that allowing a statute of limitations to run is an example of a situation where expert testimony is not required to establish the standard of care); see also Hill, 312 Minn. at 337, 252 N.W.2d at 116 (stating that no expert testimony is required when the "conduct is such that it could be adequately evaluated by a jury without expert testimony").

Mr. Lambros does not need expert testimony to show that Mr. Faulkner breached the standard of care in criminal representation. A trier of fact does not need expert testimony to know that Mr. Faulkner's actions, including his failure to do research, his rendering incorrect information, and his failure to investigate the circumstances of the arrest, conviction, and extradition, all constitute an obvious "lack of care and skill." Hill, 312 Minn. at 337, 252 N.W.2d at 116. In addition, Mr. Lambros has not presented expert testimony to support his

Footnote 18

Mr. Friedberg's affidavit on its face is deficient because he failed to review the entire record, but chose to review only parts of it.

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III Mr. Lambros' Claims Regarding Defendants' Violation of RICO Should Not Be Dismissed Pursuant to Rule 12(b)(6) Because Mr. Lambros Has Stated A Claim Upon Which Relief Can Be Granted and Defendants Are Not Entitled to Summary Judgment Because Genuine Issues of Material Fact Exist.

A. Defendants' Motion to Dismiss Mr. Lambros' RICO Claims Should Be Denied.

As noted by the Eighth Circuit, RICO includes a civil enforcement section that "permits private individuals harmed by criminal RICO activity to recover damages." Bowman v. W. Auto Supply Co., 985 F.2d 383, 384 (8th Cir. 1993). The United States Supreme Court has held that in order for a plaintiff to establish standing to bring a RICO civil enforcement suit, the plaintiff's injury must have resulted from a violation of 18 U.S.C. section 1962 regarding prohibited activities. See Sedima S.P.R.L. v. ImRex Co., 473 U.S. 479, 496-97 (1985). Mr. Lambros has stated a claim upon which relief can be granted for violation of RICO. Mr. Lambros alleged that

Footnote 19

Accordingly, Mr. Lambros has been placed in an impossible position, a previously undisclosed expert has been introduced at the eleventh hour and Mr. Lambros has effectively been denied the right to notice Mr. Friedberg for deposition and challenge his conclusions. See Palmer, 856 F.2d at 1134.

Footnote 20

Should the Court find that expert testimony is required, Mr. Lambros has submitted herewith a Motion for Appointment of a Legal Expert.

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B. Defendants' Motion for Summary Judgment on Mr. Lambros' RICO Claims Should Be Denied.

Moreover, there exist genuine issues of material fact with regard to Mr. Lambros' RICO claims. First, Defendants claim that only Mr. Faulkner worked on Mr. Lambros' case, yet Mr. Lambros alleged that other individuals were involved in the preparation of his criminal defense. (Lambros Aff. at 30). As a result, a factfinder must determine whether Mr. Faulkner acted alone. Second, there exist genuine issues of material fact regarding whether Defendants violated RICO when they entered into a "scheme to intimidate, corruptly coerce, and corruptly persuade witnesses and clients in official proceedings to withhold, fabricate and falsify evidence, information and testimony." (P's Response to Def's Motion dated April 26, 1999). (Lambros Aff.). As a result, summary judgment is improper on this claim.

IV Mr. Lambros' Claims Regarding Defendants' Failure to Pay a Commercial Lien Should Not Be Dismissed Pursuant to Rule 12(b)(6) Because Mr. Lambros Has Stated a Claim Upon Which Relief Can Be Granted and Defendants Are Not Entitled to Summary Judgment on Mr. Lambros' Claims of Failure to Pay a Commercial Lien Because Genuine Issues of Material Fact Exist.

Mr. Lambros should be allowed to pursue his commercial lien claim for one reason - - no

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Mr. Lambros respectfully requests that this Court deny the Defendants' Motion to Dismiss and Motion for Summary Judgment because the Defendants did not sustain their burden of convincing this Court that Mr. Lambros failed to state a claim upon which relief can be granted or that there exist no genuine issues of material fact with regard to Mr. Lambros' claims. Mr. Lambros, on the other hand, has put forth evidence to show both that he has stated several claims upon which relief can be granted and that there exist genuine issues of material fact regarding each of these claims. Granting Defendants' Motion to Dismiss or Motion for Summary Judgment in this case is not only unwarranted, it is entirely unjust. See Lambros Aff.; Ex. 1 (Plaintiff's Response Regarding Discovery - January 20, 2000 - Docket Entry 52) (attached hereto); Ex. 2 (Plaintiff's Response to Defendant's Motion to Dismiss - May 11, 1999 and May 19, 1999 - Docket Entries 50 and 54) (attached hereto); All Court Submissions to Date.

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BRIGGS AND MORGAN, P.A.

By____________________________

Gregory J. Stenmoe (#131155)

2400 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

(612) 334-8400

Attorneys for Plaintiff

John Gregory Lambros

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JOHN GREGORY LAMBROS
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U. S. Penitentiary Leavenworth
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