Willey v. Bugden

2013 UT App 297
_________________________________________________________
THE UTAH COURT OF APPEALS
ALAN WILLEY,
Plaintiff and Appellant,
v.
WALTER F. BUGDEN JR.; TARA L. ISAACSON; AND
BUGDEN & ISAACSON, LLC,
Defendants and Appellees.
Opinion
No. 20120623-CA
Filed December 19, 2013
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 100921786
Robb Jones and Andrew M. Bossory, Attorneys
for Appellant
Stuart H. Schultz and Byron G. Martin, Attorneys
for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
JAMES Z. DAVIS and CAROLYN B. MCHUGH concurred.
ROTH, Judge:
¶1 Alan Willey was convicted in 2007 of seven counts of
aggravated sexual abuse of a child. He subsequently challenged
his conviction on appeal, arguing that he received ineffective
assistance of counsel when his defense attorney decided not to
call a memory expert at trial. See State v. Willey, 2011 UT App 23,
248 P.3d 1014. That claim was rejected and his convictions
affirmed by this court. See id. ¶ 1. Willey then sued his former
attorneys, Walter F. Bugden Jr. and Tara L. Isaacson, and their
law firm, Bugden & Isaacson, LLC (collectively, the attorneys)

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for legal malpractice. He claimed that by failing to call a memory
expert at trial (the memory expert malpractice claims) and failing
to communicate plea offers from the State (the failure to
communicate claim), the attorneys violated the standard of care
applicable to their representation of him. The district court
granted the attorneys’ motion for summary judgment, and
Willey now appeals. We affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 This appeal is the latest development in an ongoing legal
saga that began more than seven years ago. In April 2006,
Willey, a long-time elementary school teacher, was charged with
nine counts of aggravated sexual abuse of a child, a first degree
felony.1 See Utah Code Ann. § 76-5-404.1(4), (5) (LexisNexis
Supp. 2013).2 One of Willey’s former students (Child), in his
early twenties at the time of the report, accused Willey of
inappropriately touching him almost daily during the 1993–1994
school year. The attorneys represented Willey through two
criminal trials—the first ended in a hung jury, and the second
resulted in Willey’s convictions on seven counts, which we
1. ‚When reviewing an order granting summary judgment, the
facts and all reasonable inferences that can be drawn from the
facts are viewed in a light most favorable to the party opposing
the motion.‛ Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 998
(Utah 1991).
2. Throughout this opinion, we cite the current version of the
Utah Code because no substantive changes have been made to
the relevant statutory provisions that would affect the resolution
of the issues presented on appeal.

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affirmed on appeal. See State v. Willey, 2011 UT App 23, ¶¶ 18–
20, 248 P.3d 1014.
¶3 The State’s ‚primary witnesses‛ at both trials ‚were Child
and four other students from his fourth grade class who recalled
seeing‛ Willey inappropriately touch Child. Id. ¶ 3.3 ‚At the first
trial, the State also called six . . . witnesses who testified to
having been similarly sexually abused by Willey when they were
his students in different classes at different schools.‛ Id. (citing
Utah R. Evid. 404(b)). But ‚the State elected not to use
these . . . witnesses‛ at the second trial, ‚having concluded that
they distracted from the ultimate issue of whether Willey had
sexually abused Child.‛ Id.
¶4 After the first trial resulted in a hung jury, the State
‚widened its investigation . . . , interviewing twelve more of
Child’s former classmates,‛ and investigating Willey’s conduct
while employed at another school district. Id. ¶¶ 4–5. Eight of
Child’s classmates ‚remembered that Willey would repeatedly
rub Child’s chest under his shirt,‛ and ‚*o+ne of *them+ further
recalled that Willey would crouch down next to Child’s desk.‛
Id. ¶ 4. The State also ‚discovered notes handwritten by a school
administrator from another school district where Willey had
taught prior to the events involving Child. These notes
confirmed that teachers and parents had complained that Willey
was inappropriately touching boys in his classes.‛ Id. ¶ 5. The
school ‚received additional complaints about similar
inappropriate touching‛ the next year, but the administrator did
not report any of them to the police. Id. Instead, he ‚instruct*ed+
3. Where the background facts underlying the summary
judgment motion are not in dispute, we quote liberally from the
factual description in our prior decision, State v. Willey, 2011 UT
App 23, 248 P.3d 1014. The facts in that decision are based on
Willey’s rule 23B evidentiary hearing. Where the facts are in
dispute, we draw from the record in the present case.

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20120623-CA 4 2013 UT App 297
the principal to closely monitor Willey, encourag[ed] parents not
to say anything about the touching, and [told] Willey that if he
sought psychiatric help, he would keep the allegations out of
Willey’s personnel file.‛ Id. After Willey ‚transferred to . . . the
school district in which Child attended school,‛ further
complaints about Willey’s conduct at his new school ‚were
handled similarly to the previous complaints.‛ Id.
¶5 ‚At both trials, *the attorneys+ presented a memory
confabulation defense, calling into question the reliability of
Child’s decade-old memory, specifically by alleging that a
‘good,’ encouraging touch by a teacher had been distorted in
Child’s memory over time into a ‘bad,’ sexual touch.‛ Id. ¶ 6
(footnote omitted). This strategy ‚was formed through
consultation with a memory expert [the attorneys] had used in
several other cases. Before the first trial, [the attorneys] discussed
with this expert the potential benefits and detriments of using a
memory confabulation defense under the facts of this case.‛
Id. ¶ 7. Because ‚the evidence that was available for the first
trial . . . [was+ generally corroborative of Child’s allegations,‛ the
attorneys and the expert agreed that it would be ‚difficult to
argue that Child had confused a ‘good’ touch with a ‘bad’ touch,
thus undermining *the attorneys’+ defense theory that Child’s
memories were the result of memory confabulation.‛ Id.
During their consultation, the memory expert
further inquired whether there was a paper trail of
any other independent or contemporaneous
complaints made against Willey for inappropriate
or sexual touching and opined that, if there were,
such evidence would significantly undermine a
memory confabulation defense. The memory
expert also candidly explained that given the
corroborating evidence available before the first
trial, he could be compelled to testify under cross-
examination by the State that the Child’s memory
of sexual abuse did not appear to be the result of

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20120623-CA 5 2013 UT App 297
contamination. [The attorneys were] further
concerned that a memory expert’s testimony
would potentially open the door to admission of
[testimony from witnesses who claimed to have
seen Willey touch other students].
Id. The attorneys accordingly decided against ‚presenting a
memory confabulation defense through an expert‛ because that
approach ‚could end up bolstering the State’s case.‛ Id. Instead,
they ‚elected to present such a defense by cross-examining the
witnesses so as to highlight the discrepancies in or questionable
circumstances surrounding their testimonies.‛ Id.
¶6 The attorneys’ strategic ‚decision not to have a memory
expert testify at trial was further reinforced by the additional
evidence that came to light between the first and second trials.‛
Id. ¶ 8. In particular, ‚the school administrator’s notes amounted
to a paper trail of independent, contemporaneous corroboration
of inappropriate touching‛ that the attorneys ‚recognized . . .
*w+as ‘exactly the type of information that [the expert] said
would sink the ship.’‛ Id. Although the administrator’s notes,
testimony from prior classmates, and testimony from other
witnesses who might be called ‚did not specifically corroborate‛
all of Child’s allegations, the attorneys ‚believed that this
evidence did tend to show that Willey had touched Child or
other children inappropriately, thus undermining a memory
confabulation defense that Child had in his mind turned a ‘good’
touch into a ‘bad’ touch.‛ Id. Consequently, the attorneys
decided to rely on ‚the same strategy at the second trial that
[they] had employed at the first trial: challenge the witnesses’
credibility through cross-examination rather than relying on a
memory expert whose testimony could potentially be used to
bolster the State’s case.‛ Id.
¶7 Between the two trials, Willey and the State also entered
into plea negotiations. Before the second trial began, the State
offered to dismiss all of the charged first degree felony counts

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20120623-CA 6 2013 UT App 297
and forgo prosecution for any potential criminal behavior that
occurred at his prior school district in exchange for Willey’s
Alford pleas4 to two misdemeanor counts of lewdness involving a
child. The parties offer disparate accounts of their subsequent
discussions. The attorneys maintain that Bugden promptly
contacted Willey by phone and advised him that the State had
offered an advantageous plea bargain but that Willey rebuffed
the offer, explaining that he could not imagine accepting even a
favorable guilty plea in light of his innocence and the negative
response of his family to any plea that required Willey’s
acknowledgement that he was guilty of sexual misconduct. The
attorneys asserted that they then sent Willey a detailed letter
analyzing the State’s offer in light of the evidence that would
likely be presented at Willey’s next trial. To support their
account, the attorneys provided the district court with a copy of
the letter, a Federal Express receipt showing a delivery to
Willey’s address, delivery charges to Bugden’s business credit
card, and three affidavits attesting to the underlying facts.
Bugden stated in his affidavit that after sending the letter, he and
Isaacson ‚exhaustively discussed with Mr. Willey the evidence
against him‛ and the State’s latest plea agreement. The attorneys
also pointed out that Willey admitted in a psychosexual
evaluation before sentencing that he ‚recalled having some plea
agreements but declined them because ‘[a]t the time [he] knew
*he+ was innocent and thought it would come out at trial.’‛
¶8 By contrast, Willey asserts that he never received any
written communication from the attorneys regarding a plea
4. ‚By entering an Alford plea, a defendant does not admit guilt.
Rather, the defendant enters a guilty plea because he recognizes
that a prosecutor has enough evidence to obtain a guilty
verdict.‛ State v. Ott, 2010 UT 1, ¶ 9 n.2, 247 P.3d 344; see also
North Carolina v. Alford, 400 U.S. 25, 37–38 (1970).

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offer, and he denies receiving any information about the
damaging evidence the State uncovered after the first trial that
could have substantially influenced his decision about going
forward. He does acknowledge that Bugden notified him of one
plea offer by phone, but Willey maintains that Bugden’s only
advice was that ‚he wouldn’t think less of [Willey] if [he]
accepted the plea deal.‛ In support, Willey offers his own
affidavit.
¶9 At his second trial, Willey was convicted of seven counts
of aggravated sexual abuse of a child, a first degree felony, see
Utah Code Ann. § 76-5-404.1(4), (5) (LexisNexis Supp. 2013), and
the court imposed concurrent prison sentences of one to fifteen
years for each count. Willey appealed, arguing that the attorneys
provided ineffective assistance of counsel by failing to call a
memory expert at trial, and we remanded under rule 23B of the
Utah Rules of Appellate Procedure for an evidentiary hearing on
that issue. After the district court found that there were ‚no facts
to support an ineffective assistance of counsel claim,‛ we
affirmed, holding that Willey had ‚failed to adequately marshal
the evidence to challenge the district court’s findings of fact.‛
State v. Willey, 2011 UT App 23, ¶ 12, 248 P.3d 1014. We also
noted that ‚regardless of Willey’s failure to marshal the
evidence,‛ the attorneys’ ‚decision not to have a memory expert
testify at trial fell well within the bounds of sound trial strategy.‛
Id. ¶ 18.
¶10 In November 2010, Willey sued the attorneys for
malpractice. He alleged that they were negligent for not calling a
memory expert at trial and for failing to adequately
communicate the State’s plea offers before Willey’s second trial.
The attorneys filed a motion for summary judgment, arguing
that Willey’s malpractice claims either were barred by collateral

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estoppel or failed for lack of causation.5 The attorneys’ statement
of undisputed material facts sets out the district court’s findings
in the rule 23B evidentiary hearing, our decision affirming
Willey’s conviction, and the Utah Supreme Court’s subsequent
denial of Willey’s petition for a writ of certiorari. In response,
Willey did not deny any of the material facts from the attorneys’
motion; instead, he set forth his own statement of material facts
that essentially restated the allegations from his complaint.
¶11 The district court granted summary judgment in favor of
the attorneys, holding that Willey’s unsuccessful ineffective
assistance claim precluded any malpractice claims related to the
attorneys’ failure to call a memory expert. After considering
supplemental briefing on Willey’s remaining claim that the
attorneys had failed to adequately communicate settlement
offers, the district court granted summary judgment on that
issue as well. In its order, the court discussed the strong
evidentiary support the attorneys provided to show that Willey
received a letter detailing the State’s last plea offer and that
5. The attorneys argued in their memorandum in support of
summary judgment that Willey’s claim failed on proximate
cause grounds because, after failing to obtain post conviction
relief, he could not show his injury resulted from his attorneys’
error rather than his own underlying criminality. Some states
require a criminal defendant to obtain post conviction relief,
prove actual innocence, or both, before maintaining a legal
malpractice action against the former criminal defense attorney.
See, e.g., Wiley v. County of San Diego, 966 P.2d 983, 985 (Cal. 1998)
(requiring proof of actual innocence and citing decisions from
nine jurisdictions that adopted the same rule); Canaan v. Bartee,
72 P.3d 911, 915–16, 918 (Kan. 2003) (citing decisions from states
that require proof of actual innocence and states that do not). For
an exhaustive state survey of case law on the topic, see 3 Ronald
E. Mallen & Jeffrey M. Smith, Legal Malpractice § 27:13 (2013). The
attorneys do not raise this issue on appeal.

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Willey himself acknowledged being aware of more than one plea
offer. Willey appeals.
ISSUES AND STANDARD OF REVIEW
¶12 Willey argues that the district court committed several
errors when it granted the attorneys’ motion for summary
judgment. First, the court should not have determined that
Willey admitted the facts set forth in the attorneys’ motion when
he did not expressly deny them, and in any case, those facts
‚were not relevant or material‛ to Willey’s claims. Second, the
court ‚inappropriately glossed over the distinction‛ between
legal malpractice and ineffective assistance of counsel and
incorrectly held that an unsuccessful ineffective assistance claim
precludes a later claim for legal malpractice on the same issues.
Finally, there were genuine issues of material fact about whether
the attorneys adequately communicated and advised Willey
regarding the State’s plea offers, and the court inappropriately
weighed this evidence. Summary judgment is appropriate only
where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Utah R.
Civ. P. 56(c). ‚We review a district court’s grant of summary
judgment for correctness.‛ Torian v. Craig, 2012 UT 63, ¶ 13, 289
P.3d 479.
ANALYSIS
¶13 We affirm the district court’s summary judgment ruling
on Willey’s memory expert malpractice claims because Willey
has failed to demonstrate that an unsuccessful claim of
ineffective assistance of counsel in an underlying criminal case
cannot have preclusive effects on subsequent claims for legal

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malpractice.6 However, we agree with Willey that the district
court weighed the evidence on his failure to communicate claim
and inappropriately granted summary judgment on that issue.
I. Issue Preclusion
¶14 Whether an ineffective assistance of counsel claim has
preclusive effects on a subsequent claim for legal malpractice is
an issue of first impression in Utah. But because Willey has
inadequately briefed the issue, we are not in a position to resolve
it and accordingly affirm the district court’s ruling. See Utah R.
App. P. 24(a)(9) (‚The argument *of an appellate brief+ shall
contain the contentions and reasons of the appellant with respect
to the issues presented . . . .‛).
¶15 ‚Collateral estoppel, otherwise known as issue
preclusion, prevents parties or their privies from relitigating facts
and issues in the second suit that were fully litigated in the first
suit.‛ Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42,
¶ 23, 285 P.3d 1157 (citation and internal quotation marks
omitted). ‚‘In effect, once a party has had his or her day in court
and lost, he or she does not get a second chance to prevail on the
same issues.’‛ State v. Baker, 2008 UT App 8, ¶ 2, 176 P.3d 493
(quoting Buckner v. Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842). Issue
preclusion has four conjunctive elements:
(i) the party against whom issue preclusion is
asserted [was] a party to or in privity with a party
to the prior adjudication; (ii) the issue decided in
the prior adjudication [was] identical to the one
6. Because our issue preclusion analysis disposes of Willey’s
memory expert malpractice claims, we need not reach the issue
raised by the attorneys of whether Willey admitted the facts in
the attorneys’ motion for summary judgment by not expressly
denying them.

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presented in the instant action; (iii) the issue in the
first action [was] completely, fully, and fairly
litigated; and (iv) the first suit . . . resulted in a final
judgment on the merits.
Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 41, 250 P.3d 465
(alterations and omission in original) (citation and internal
quotation marks omitted). Issue preclusion applies in both civil
and criminal proceedings. State v. Cahoon, 2009 UT 9, ¶ 15, 203
P.3d 957.
¶16 There is no dispute that Willey was a party to the
ineffective assistance case and that there was a final judgment on
the merits. But he argues that the issues of ineffective assistance
of counsel in that case are not identical to the issues of attorney
malpractice in this civil case and that he therefore did not have a
full and fair opportunity to litigate his trial counsel’s negligence
in the criminal proceeding.
¶17 To prevail on an ineffective assistance of counsel claim, a
‚‘defendant must show that counsel’s performance was
deficient’‛ and ‚‘that the deficient performance prejudiced the
defense.’‛ State v. Templin, 805 P.2d 182, 186 (Utah 1990) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)). A legal
malpractice plaintiff confronts a similar challenge in proving
that his or her attorney’s representation fell below an objective
standard of care, Watkiss & Saperstein v. Williams, 931 P.2d 840,
846 (Utah 1996), and that ‚absent the attorney’s negligence, the
underlying suit would have been successful,‛ Harline v. Barker,
912 P.2d 433, 439 (Utah 1996). Neither the district court’s
findings at the 23B hearing nor our ultimate decision on Willey’s
ineffective assistance claim addressed the second element of
ineffective assistance, prejudice. The question before us, then, is
whether the standard of deficient performance in an ineffective
assistance case is similar enough to the standard of care in a legal
malpractice case to satisfy the second element of issue
preclusion.

Willey v. Bugden
20120623-CA 12 2013 UT App 297
¶18 The verbal formulations Utah courts use to describe the
standard of care in legal malpractice cases and the deficient
performance prong of ineffective assistance appear facially
distinct. In the context of legal malpractice, courts describe an
attorney’s duty as requiring the ‚use *of+ such skill, prudence,
and diligence as lawyers of ordinary skill and capacity
commonly possess and exercise in the performance of the tasks
which they undertake.‛ Williams, 931 P.2d at 846 (citation and
internal quotation marks omitted). Like civil negligence actions
generally, the plaintiff has the burden to prove a breach of that
duty by a preponderance of the evidence. See Lund v. Phillips
Petroleum Co., 351 P.2d 952, 954 (Utah 1960) (describing the
burden of proof for negligence claims). In ineffective assistance
cases, ‚the proper measure of attorney performance‛ is the
apparently comparable standard of ‚reasonableness under
prevailing professional norms.‛ Strickland, 466 U.S. at 688. Stated
another way, a defendant must ‚demonstrate that counsel’s
performance was deficient, in that it fell below an objective
standard of reasonable professional judgment.‛ State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland, 466 U.S.
at 687–88). The defendant has the burden of proof in ineffective
assistance cases but must also ‚rebut the strong presumption
that under the circumstances, the challenged action might be
considered sound trial strategy.‛ Id. (citation and internal
quotation marks omitted). And some commentators have argued
that the ‚strong‛ presumption of competent representation in
ineffective assistance cases makes a finding of deficient
performance qualitatively different from a determination of
negligent representation in a civil suit.7
7. For further discussion of the conceptual difficulties involved
in equating the deficient performance prong of ineffective
assistance with breach of duty in a legal malpractice claim, see
Meredith J. Duncan, Criminal Malpractice: A Lawyer’s Holiday, 37
Ga. L. Rev. 1251, 1272–73 (2003); Meredith J. Duncan, The (So-
(continued . . .)

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20120623-CA 13 2013 UT App 297
¶19 Nevertheless, while no Utah court has directly addressed
the issue, other jurisdictions have held that there is no significant
difference between the two standards for purposes of issue
preclusion. For example, in McCord v. Bailey, 636 F.2d 606 (D.C.
Cir. 1980), the D.C. Circuit held that a prior unsuccessful
ineffective assistance claim precluded a subsequent claim for
legal malpractice, emphasizing that ‚the legal standards for
ineffective assistance of counsel . . . and for legal malpractice . . .
are equivalent.‛ Id. at 609. The claims in both the civil case and
the underlying criminal case in McCord hinged on the attorney’s
alleged disloyalty and ineffective cross-examination of key
witnesses. Id. at 608–09. The court concluded that because the
facts and issues were the same in both cases, the issues were
actually litigated in the criminal proceeding, and the plaintiff
had ‚every incentive in his criminal proceedings to argue
aggressively for his claim.‛ Id. at 610–11.
¶20 Similarly, in Zeidwig v. Ward, 548 So. 2d 209 (Fla. 1989),
the Florida Supreme Court held that after a defendant loses an
ineffective assistance claim, ‚the defendant/attorney in a
subsequent civil malpractice action brought by the criminal
defendant may defensively assert collateral estoppel.‛ Id. at 214.
The court reasoned that failing ‚to allow the use of collateral
estoppel in these circumstances is neither logical nor reasonable‛
because ‚‘[i]t would undermine the effective administration of
the judicial system to ignore completely a prior decision of a
court . . . on the same issue.’‛ Id. (quoting Johnson v. Raban, 702
S.W.2d 134, 138 (Mo. Ct. App. 1985)). Other courts have held that
Called) Liability of Criminal Defense Attorneys: A System in Need of
Reform, 2002 BYU L. Rev. 1, 34–37; Susan P. Koniak, Through the
Looking Glass of Ethics and the Wrong with Rights We Find There, 9
Geo. J. Legal Ethics 1, 6–9 (1995). For a contrary view, see Susan
M. Treyz, Criminal Malpractice: Privilege of the Innocent Plaintiff?,
59 Fordham L. Rev. 719, 724–26 (1991).

Willey v. Bugden
20120623-CA 14 2013 UT App 297
a defendant who loses an ineffective assistance claim in a federal
habeas proceeding cannot later assert a legal malpractice claim
involving the same issues in state court. See, e.g., Younan v.
Caruso, 59 Cal. Rptr. 2d 103, 107 (Ct. App. 1996) (‚*T+he habeas
standard for gauging the effectiveness of trial counsel is the
same as in a legal malpractice action . . . .‛); Belford v. McHale
Cook & Welch, 648 N.E.2d 1241, 1246 (Ind. Ct. App. 1995) (‚The
first step of the Strickland standard and the breach element of
legal malpractice are identical, i.e., counsel must act
reasonably.‛).
¶21 Willey provides us with no basis for rejecting the
reasoning of these cases, which appears to have been followed in
virtually every jurisdiction that has considered the issue: our
own research indicates that courts in Alaska, California,
Connecticut, Colorado, Delaware, Georgia, Illinois, Indiana,
Maine, Michigan, Missouri, New York, Ohio, Pennsylvania,
Tennessee, and Texas all hold that collateral estoppel applies in
this context.8 Willey has not cited any cases that hold otherwise,
8. Shaw v. State, 816 P.2d 1358, 1361 (Alaska 1991) (‚If the
defendant was denied post-conviction relief, the legal principle
of collateral estoppel would serve to eliminate any malpractice
claim.‛); Younan v. Caruso, 59 Cal. Rptr. 2d 103, 107 (Ct. App.
1996) (‚*T+he habeas standard for gauging the effectiveness of
trial counsel is the same as in a legal malpractice action . . . .‛);
Rantz v. Kaufman, 109 P.3d 132, 140 (Colo. 2005) (holding that
‚the inquiry undertaken‛ in ineffective assistance cases and legal
malpractice cases ‚is identical and focuses on what ordinary
members of the legal profession would have done at the time the
action was taken‛); Gray v. Weinstein, No. X02CV010175974S,
2004 WL 3130552, at *5–6 (Conn. Super. Ct. Dec. 22, 2004)
(holding that the issues of deficient performance in habeas cases
asserting ineffective assistance and negligent representation in
legal malpractice cases ‚are functionally identical‛), aff’d, 955
A.2d 1246 (Conn. App. Ct. 2008); Sanders v. Malik, 711 A.2d 32, 34
(continued . . .)

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20120623-CA 15 2013 UT App 297
(Del. 1998) (holding that the denial of an ineffective assistance
claim collaterally estopped a malpractice claim); Cornwell v.
Kirwan, 606 S.E.2d 1, 4–5 (Ga. Ct. App. 2004) (imposing sanctions
on an attorney and his client jointly for filing a malpractice claim
because his client’s habeas petition that raised the same issues in
an ineffective assistance claim had been denied); Griffin v.
Goldenhersh, 752 N.E.2d 1232, 1239 (Ill. App. Ct. 2001) (‚The
elements of a legal malpractice action and the elements of
ineffective assistance of counsel under Strickland . . . are the same
for the purposes of collateral estoppel.‛); Belford v. McHale Cook
& Welch, 648 N.E.2d 1241, 1246 (Ind. Ct. App. 1995) (‚The first
step of the Strickland standard and the breach element of legal
malpractice are identical, i.e., counsel must act reasonably.‛);
Brewer v. Hagemann, 2001 ME 27, ¶¶ 8–9, 771 A.2d 1030, 1033
(holding that collateral estoppel barred a legal malpractice claim
where the plaintiff had previously lost an ineffective assistance
claim); Knoblauch v. Kenyon, 415 N.W.2d 286, 289 (Mich. Ct. App.
1987) (‚We therefore hold that the legal standards for ineffective
assistance of counsel . . . and for legal malpractice . . . are
equivalent for purposes of . . . collateral estoppel.‛); Johnson v.
Raban, 702 S.W.2d 134, 138 (Mo. Ct. App. 1985) (‚The collateral
estoppel effect of the [denial of an ineffective assistance claim]
. . . therefore precludes plaintiff from relitigating the issue of
defendant’s negligence.‛); Krahn v. Kinney, 538 N.E.2d 1058,
1062–63 (Ohio 1989) (noting that the denial of an ineffective
assistance claim can have preclusive effects on a malpractice
claim, but concluding that the particular plaintiff’s malpractice
claim hinged on an issue unrelated to those litigated in the
ineffective assistance case); Alberici v. Tinari, 542 A.2d 127, 132
(Pa. Super. Ct. 1988) (holding that because the ‚appellant ha[d]
unsuccessfully raised the question of ineffectiveness of counsel
at three levels in the federal judicial system, . . . [t]he second
element of [legal malpractice, failure to exercise knowledge and
skill,] ha[d] not been met‛); Gibson v. Trant, 58 S.W.3d 103, 115
(Tenn. 2001) (‚*C+riminal defendants who seek to overturn their
(continued . . .)

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20120623-CA 16 2013 UT App 297
and our survey of other state court decisions, while not
exhaustive, has failed to uncover any case that supports his
position. Rather, Willey’s brief fails to acknowledge any
precedent adverse to his position but simply asserts in
conclusory fashion that ‚the elements of ineffective assistance of
counsel are not the same as the elements of legal malpractice‛
and cites a student note in the Ohio State Journal of Criminal
Law that devotes only a few paragraphs to a secondhand
discussion of the topic.9 ‚*B+ald citations to authority‛ without
meaningful analysis, however, do not articulate Willey’s claim
‚with sufficient specificity for this court to make a ruling on the
merits.‛ See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (citation
and internal quotation marks omitted); see also Utah R. App. P.
24(a)(9) (‚The argument *of an appellate brief+ shall contain the
contentions and reasons of the appellant with respect to the
issues presented . . . .‛). Without more, we are not in a position
to rule at this point on the legal issue, much less to establish a
rule that departs from what appears to be uniform precedent in
other jurisdictions. We accordingly decline to revisit the district
court’s grant of summary judgment on Willey’s memory expert
malpractice claims.
convictions, as they have every incentive to do, may not
relitigate their claims in a malpractice suit.‛); Garcia v. Ray, 556
S.W.2d 870, 872 (Tex. Civ. App. 1977) (stating that an adverse
ruling on an ineffective assistance claim barred the criminal
defendant’s assertion of a civil legal malpractice claim). Cf.
Vavolizza v. Krieger, 308 N.E.2d 439, 441–42 (N.Y. 1974) (holding
that denial of a criminal defendant’s motion to vacate a guilty
plea in a criminal action acted to collaterally estop a later civil
action for malpractice based on his attorney’s advice to plead
guilty).
9. Willey cites Kevin Bennardo, Note, A Defense Bar: The “Proof of
Innocence” Requirement in Criminal Malpractice Claims, 5 Ohio St. J.
Crim. L. 341, 345–46 (2007).

Willey v. Bugden
20120623-CA 17 2013 UT App 297
II. Failure To Communicate the Misdemeanor Plea Offer
¶22 Willey also challenges the district court’s award of
summary judgment to the attorneys on his failure to
communicate claim, which was not litigated in the criminal
proceeding and therefore raises no issue preclusion question. He
argues that there were material facts in dispute and that the
district court improperly ‚engage*d+ in the weighing of
evidence.‛
¶23 This claim requires Willey to show, among other things,
that the attorneys breached a duty arising out of their attorney–
client relationship, and that Willey would have benefited if the
attorneys ‚had adhered to ordinary standards of professional
competence.‛ See Christensen & Jensen, PC v. Barrett & Daines,
2008 UT 64, ¶¶ 22, 26, 194 P.3d 931 (citation and internal
quotation marks omitted). Because ‚the negotiation of a plea
bargain is a critical phase of litigation,‛ Missouri v. Frye, 132 S.
Ct. 1399, 1406 (2012) (citation and internal quotation marks
omitted), ‚defense counsel has the duty to communicate formal
offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused,‛ id. at 1408.
‚For example, a lawyer who receives from opposing
counsel . . . a proffered plea bargain in a criminal case must
promptly inform the client of its substance unless the client has
previously indicated that the proposal will be . . . unacceptable
or has authorized the lawyer to accept or reject the offer.‛ Utah
R. Prof’l Conduct 1.4 cmt. 2; see also id. R. 1.2(a) (‚In a criminal
case, the lawyer shall abide by the client’s decision, after
consultation with the lawyer, as to a plea to be entered . . . .‛).10
10. By citing the Utah Rules of Professional Conduct, we do not
imply that a rule violation automatically gives rise to a
malpractice action. Utah courts have consistently held that ‚*t+he
Rules of Professional Conduct are not a basis for civil liability,‛
even though an attorney’s negligence ‚may well violate‛ a
(continued . . .)

Willey v. Bugden
20120623-CA 18 2013 UT App 297
An attorney who fails to communicate a plea offer to his client
can therefore be liable for malpractice if the lack of
communication damages the client. See Huffer v. Cicero, 667
N.E.2d 1031, 1033–34, 1037 (Ohio Ct. App. 1995) (holding that a
plaintiff in a legal malpractice action could recover attorney fees,
together with the difference between a fine imposed on him and
a lower fine offered in a plea bargain that his attorney never
disclosed).
¶24 The attorneys assert that they communicated multiple
plea offers to Willey and that they thoroughly explained the
State’s misdemeanor Alford plea offer over the phone, by mail,
and in a face-to-face meeting before trial. Despite their efforts,
the attorneys claim, Willey ‚was adamant . . . that he was
unwilling to consider any plea offer because he was innocent.‛
In support of these assertions, the attorneys offered Bugden’s
affidavit, Isaacson’s affidavit, an affidavit from the legal assistant
who prepared the letter communicating the offer to Willey, a
Federal Express receipt showing a delivery to Willey’s address
just after the letter’s date, and charges to Bugden’s business
credit card for that delivery. The attorneys also pointed the
district court to Willey’s presentence psychosexual evaluation
where Willey stated that he ‚recalled having some plea
agreements but declined them because ‘*a+t the time [he] knew
*he+ was innocent and thought it would come out at trial.’‛ This
evidence, the attorneys argue, shows that ‚*i+t is undisputed that
Mr. Willey was informed of plea negotiations‛ and that Willey
would not have accepted a plea offer anyway ‚because he
believed he was not guilty.‛
¶25 Willey, on the other hand, asserts that the attorneys not
only failed to communicate to him multiple plea offers from the
particular rule. Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283,
1291 n.3 (Utah Ct. App. 1996); accord Archuleta v. Hughes, 969
P.2d 409, 413–14 (Utah 1998).

Willey v. Bugden
20120623-CA 19 2013 UT App 297
State, but also ‚never told‛ him ‚of the grave concerns *the
attorneys] harbored about the evidence and theory of his case.‛
Willey further denies receiving the detailed letter the attorneys
claim to have sent by Federal Express just before trial that
discussed damaging evidence the State had discovered between
the two trials and an offer for Willey to ‚*p+lead ‘no contest’ on
an Alford guilty plea to two [misdemeanor] counts of Lewdness
Involving a Child.‛ Willey also asserts that he never ‚refused to
consider any plea offer.‛ In support, Willey offered his own
sworn statement in an affidavit.
¶26 We conclude that the district court inappropriately
weighed this conflicting evidence. Summary judgment can be
granted only if ‚the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, . . . 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.‛ Utah R. Civ. P. 56(c). Where ‚reasonable
jurors, properly instructed, would be able to come . . . to
different conclusions,‛ there is an issue of fact and summary
judgment is not appropriate. Clegg v. Wasatch Cnty., 2010 UT 5,
¶ 15, 227 P.3d 1243. Courts are ‚not required to draw every
possible inference of fact, no matter how remote or improbable,
in favor of the nonmoving party,‛ IHC Health Servs., Inc. v. D & K
Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588, but they must also
avoid weighing the credibility of conflicting evidence, Webster v.
Sill, 675 P.2d 1170, 1172 (Utah 1983). In this regard, the Utah
Supreme Court has instructed that ‚‘it only takes one sworn
statement under oath to dispute the averments on the other side
of the controversy and create an issue of fact.’‛ Draper City v.
Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (quoting
Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975)).
¶27 Here, the attorneys provided strong evidence that they
sent a letter explaining the misdemeanor plea offer and that they
discussed the letter and damaging evidence with Willey before
trial. But Willey’s denials in a sworn statement create an issue of

Willey v. Bugden
20120623-CA 20 2013 UT App 297
fact regarding whether Willey did in fact receive the letter and
whether he ever had the opportunity to discuss its contents with
the attorneys. Even if the evidence was undisputed as to the
preparation and sending of the letter, Willey alleges in a sworn
statement that the attorneys ‚never met with *him+ to discuss
plea negotiations, plea bargains, or plea offers‛ and that he did
not receive a letter before trial discussing the State’s
misdemeanor plea offer. Willey also alleges that although he was
aware ‚of a single plea offer,‛ the attorneys’ only advice
regarding the offer was that they ‚wouldn’t think less of *Willey+
if *he+ accepted the plea deal.‛ Moreover, according to Willey,
the attorneys ‚did not . . . discuss the evidence against [him]
prior to [his] re-trial,‛ and he asserts that he never ‚refused to
consider any plea offer.‛ These allegations, if believed by a jury,
could support a claim that the attorneys breached a duty to ‚use
such skill, prudence, and diligence as lawyers of ordinary skill
and capacity commonly possess,‛ see Watkiss & Saperstein v.
Williams, 931 P.2d 840, 846 (Utah 1996), in assuring that Willey
had all the information he needed to intelligently assess the
risks, benefits, and wisdom of proceeding to a second trial on
several first degree felony charges instead of accepting the
State’s misdemeanor plea offer.
¶28 As the district court apparently did, a jury could consider
Willey’s explanation implausible in light of the evidence the
attorneys presented, but ‚weighing credibility and assigning
weight to conflicting evidence‛ is not appropriate at the
summary judgment stage. See Martin v. Lauder, 2010 UT App 216,
¶ 14, 239 P.3d 519. And Willey’s single ‚‘sworn statement under
oath’‛ is enough ‚‘to dispute [the attorneys’+ averments . . . and
create an issue of fact’‛ for trial. See Estate of Bernardo, 888 P.2d at
1101 (quoting Holbrook, 542 P.2d at 193). We therefore cannot
agree with the district court that it was undisputed that Willey
‚knew about the plea offers and was advised regarding the plea
offers by counsel in the May 31, 2007 letter . . . [and] that [Willey]
expressly confirmed that he decided not to accept the plea offers
because he was not guilty and thought it would be wrong.‛

Willey v. Bugden
20120623-CA 21 2013 UT App 297
Willey certainly made statements to that effect in his
psychosexual evaluation and a presentence report, but neither
statement precludes the possibility that Willey did not receive
reasonably competent advice and may have accepted a plea if
fully informed, something he swears did not occur.11
Consequently, Willey’s failure to communicate claim cannot be
resolved as a matter of summary judgment.
CONCLUSION
¶29 We affirm the district court’s ruling on Willey’s memory
expert malpractice claims because Willey has not adequately
briefed the issue on appeal. We also conclude that the district
court improperly weighed conflicting evidence on Willey’s
failure to communicate claim and reverse and remand that claim
for further proceedings consistent with this opinion.
11. In the presentence report, Willey stated, ‚I was offered a plea
agreement by the prosecutor of two class A misdemeanor
charges but refused to accept this, feeling why should I when
I’m not guilty. Obviously, that was a mistake looking at what
has happened, but my attorney didn’t advise me differently. I
still feel accepting the lower charge would have been wrong
because I am not guilty.‛ In his psychosexual evaluation before
sentencing, Willey ‚recalled having some plea agreements but
declined them because ‘[a]t the time [he] knew [he] was innocent
and thought it would come out at trial.’‛