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Jasin v. Michael

November 2, 2009

THOMAS P. JASIN PLAINTIFF
v.
MICHAEL, BEST AND FRIEDRICH, LLP. DEFENDANT



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Before the Court is a motion for summary judgment filed by defendant Michael, Best, and Friedrich, LLP ("Michael Best"). The plaintiff, Thomas P. Jasin, has filed suit alleging professional malpractice in connection with a 1992 criminal trial during which he was represented by an attorney from Michael Best. Mr. Jasin was found guilty of conspiracy to violate an arms embargo against South Africa and sentenced to two years in prison; however, his habeas corpus petition claiming ineffective assistance of counsel was later granted. Michael Best claims Mr. Jasin's suit is barred by res judicata because his case has already been dismissed in Wisconsin state court on statute of limitations grounds.

I. BACKGROUND

A. The Criminal Conviction and Proceedings

During the 1980's, Thomas P. Jasin was a high-ranking officer of ISC Technologies ("ISCT"), a Lancaster, Pennsylvania based company that dealt in military equipment and systems for both domestic and international customers. United States v. Jasin, 280 F.3d 355, 357 (3d Cir. 2002).*fn1 While employed with ISCT, Mr. Jasin managed the Striker missile project, and was involved in the sale of missiles containing both South African and American parts to China. Id. On October 30, 1991, a federal grand jury in the Eastern District of Pennsylvania indicted Mr. Jasin and numerous other ISCT defendants for conspiring with South African nationals and corporations to transfer, by way of front companies, millions of dollars worth of weapons and components to South Africa in violation of the Arms Export Control Act, 22 U.S.C. § 2778, the Comprehensive Anti Apartheid Act, 22 U.S.C. §§ 5501 et seq and various provisions of the federal money laundering statutes. Id. Prior to his indictment, Mr. Jasin met with Garr Steiner, an attorney from Wisconsin firm Michael Best, who agreed to represent Mr. Jasin in any criminal investigation or prosecution arising from his employment with ISCT. Pl.'s Mem. In Opp'n to Def.'s Mot. For Summ. J. at 4.

Mr. Jasin, represented by Mr. Steiner, faced two charges at a trial held before the Honorable Jan DuBois in late 1992: Count one charged him with participating in a conspiracy to circumvent the arms embargo against South Africa; and Count twenty-four charged him with violating the Arms Export Control Act for exporting data and technology to South Africa without authorization from the United States Department of State. Id. On December 10, 1992, the jury found Mr. Jasin guilty of Count one and acquitted him on Count twenty-four. Id. at 358. In July of 1993, Mr. Jasin and Mr. Steiner terminated their attorney-client relationship and Mr. Jasin obtained new counsel for sentencing. In 1998, the court sentenced Mr. Jasin to 24 months in prison. Id.

This is only a piece of Mr. Jasin's legal saga. In the months following the verdict, he filed post-trial motions for a new trial and for a judgment of acquittal, both of which were denied. Def.'s Mot. For Summ. J. Ex. I (4). In 1997, he filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 based upon newly discovered evidence. United States v. Jasin, 280 F.3d at 356. The Court denied that motion in 2000, and Mr. Jasin appealed to the Third Circuit, which affirmed the District Court's order. See id.

On February 12, 2001, Mr. Jasin filed a § 2255 motion to vacate his sentence based on Mr. Steiner's ineffective assistance of counsel at trial. Def.'s Mot. For Summ. J. Ex. I (11). In August of 2002, Judge DuBois granted his motion in part and denied it in part, finding that Mr. Steiner was objectively unreasonable "in his failure to investigate, interview, and call at trial witnesses with evidence in support of [Mr. Jasin's] good faith defense as requested by [Mr. Jasin]" and that this unreasonable failure prejudiced Mr. Jasin's good faith defense. United States v. Jasin, 215 F. Supp. 2d 552, 560, 567 (E.D. Pa. 2002). He vacated Mr. Jasin's conviction on this ground. Id. at 594.

Because the factual findings in the above decision are not all necessary to the disposition of this motion, they will be cited sparingly. In relevant part, the court found that Mr. Jasin requested both orally and in writing that Mr. Steiner interview and call as witnesses at trial certain people-including two individuals who worked for a company that had cooperated with ISCT in the testing of certain missiles; James Guerin, the leader of the ISCT conspiracy; and various expert witnesses including John Gencavage, a handwriting expert-who would corroborate Mr. Jasin's claim that he believed in good faith he was acting in accordance with relevant federal regulations. Id. at 561--62. The court found that "trial counsel conducted no pre-trial investigation and interviewed neither the witnesses defendant asked him to interview nor the witnesses he actually presented" and noted that this "dereliction" was explained in part by the fact "disclosed to defendant at the beginning of trial, that trial counsel had never tried a criminal case before this one." Id. at 566.

B. The Subsequent Civil Action

On January 2 and January 6, 2004 respectively, Mr. Jasin filed a Complaint and an Amended Complaint in the United States District Court for the Eastern District of Wisconsin against Michael Best. Def.'s Mot. For Summ. J. Ex. A, B. The Wisconsin federal court dismissed Mr. Jasin's action for lack of complete diversity, and he then refiled in the Wisconsin Circuit Court for Waukesha County. Id. Ex. C, D. In his Complaint, he alleged that Mr. Steiner, who at that point was deceased, "lied to [Mr. Jasin] before, during, and after trial about his attempts to obtain the testimony of the important defense witnesses identified by Mr. Jasin" and that Mr. Steiner never contacted those proposed witnesses and falsely assured Mr. Jasin that he had. Id. Ex. D at ¶ 31. Count I of his complaint alleged professional malpractice based on Mr. Steiner's negligence, his "actions in failing to properly investigate and prepare" for the case, and his "fraudulently concealing his malpractice." Id. at ¶¶ 41--48. Count II alleged breach of contract for Steiner's failure to diligently represent Mr. Jasin. Id. at ¶¶ 49--58.

From the beginning of Mr. Jasin's Wisconsin action, Michael Best's statute of limitations defense was of central importance. Mr. Jasin first filed a motion for partial summary judgment, admitting that the Pennsylvania two year statute of limitations for professional malpractice applied. Def.'s Mot. For Summ. J. Ex. F at 28. However, he also argued the Court should adopt and apply the exoneration rule, whereby the statute of limitations on a malpractice claim does not begin to run until the date of exoneration-in his case, the date on which Judge DuBois vacated Mr. Jasin's conviction in August 2002. Def.'s Mot. For Summ. J. Ex. F at 22--23. He also claimed that because Mr. Steiner concealed the nature and extent of his misconduct in representing Mr. Jasin, Michael Best was equitably estopped from asserting a statute of limitations defense. Id. Ex. F at 24.

Although Mr. Jasin argued for the application of the exoneration rule in determining the accrual date for his action, it was, at the time of filing, a matter of first impression under Wisconsin law when the statute of limitations period for professional malpractice begins to run. See id. Ex. Q. Had the Wisconsin court adopted and applied the exoneration rule as Mr. Jasin argued it should, his malpractice action would have been timely since his § 2255 petition was granted in 2002 and his Wisconsin action was filed less than two years later. Id. Ex. F. at 30.

Michael Best also filed a motion for summary judgment in the action, arguing that under applicable choice of law rules, the accrual date for Mr. Jasin's malpractice claim was governed not by Wisconsin law but by Pennsylvania law, under which it is settled that the statute of limitations on criminal representation malpractice claims begins to run upon termination of the attorney client relationship even if a defendant has not yet obtained post-conviction relief. Id. Ex. H at 8--9; see Bailey v. Tucker, 533 Pa. 237, 253, 621 A.2d 108, 116 (Pa. 1998). Therefore, while Mr. Jasin's action was wholly foreclosed in Pennsylvania since he did not file suit before the statute of limitations expired in 1995, his suit could have gone forward in Wisconsin depending on the court's analysis of the accrual issue.

On October 5, 2006, the Waukesha County Circuit Court granted Michael Best's motion for summary judgment. See id. Ex. Q. It undertook an extensive analysis of the conflict between Wisconsin law and Pennsylvania law presented in Mr. Jasin's case. First, it concluded that the foreign (i.e. Pennsylvania) two year statute of limitations for professional malpractice applied because the claim was a "foreign cause of action." Id. at 9. It then determined that although the Pennsylvania statute of limitations applied, Wisconsin's tolling principles determined when the action accrued. Id. at 4--8, 10--11. Recognizing that Wisconsin law was silent on the issue of accrual rules, the court adopted the Pennsylvania approach requiring filing upon termination of the attorney-client relationship, reasoning that it better protected a plaintiff's right to relief and an attorney's exposure to liability than the exoneration approach. Id. at 14. It found Mr. Jasin's claim was barred because it had not been filed within two years of the accrual date. Id. at 15.

Mr. Jasin appealed the Circuit Court's decision to the Wisconsin Court of Appeals. Jasin v. Michael Best & Friedrich, 2007 WL 4179837 (WiS.Ct. App. 2007). The court affirmed the decision but found that Pennsylvania, not Wisconsin accrual rules determined when the statute of limitations began to run on Mr. Jasin's claim. Id. at *2. However, because Wisconsin had adopted Pennsylvania's approach, the outcome for Mr. Jasin remained the same: expiration of the statute of limitations. The Court of Appeals also addressed Mr. Jasin's equitable estoppel argument, which was not analyzed at length by the Circuit Court. It stated "[t]he circuit court's decision does not address this issue. Jasin should have brought the omission of the issue to the attention of the circuit court and the failure to do so constitutes a waiver of the right to have such an issue considered on appeal." Id. at *3. Mr. Jasin filed a motion for reconsideration of the Circuit Court's ruling on the equitable estoppel issue, and the Court denied it, reasoning that "where, as here, a myriad of theories are presented to the circuit court and the circuit court fails to explicitly address a particular theory, it is reasonable to require a party to bring the omission to the circuit's court's attention for a definitive ruling... In any event, our ...


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