Requirements to plead a legal malpractice action arising from a criminal matter in Virginia
In Desetti v. Chester, the Virginia Supreme Court considered the issue of whether a plaintiff sufficiently pled a claim for legal malpractice that occurred during the course of an attorney's misrepresentation of the plaintiff in a criminal matter.
The plaintiff, her husband, and her son were all involved in a criminal incident with a law enforcement officer at their home. Based on that incident, she was charged with felony assault and battery of a law enforcement officer and a misdemeanor obstruction of justice count. Her husband and son were charged with misdemeanor obstruction of justice counts. They all retained the same defense counsel.
The charges against the husband and son went to trial first. The defense attorney called the plaintiff as a witness, and during the course of her direct examination, she admitted that she struck the law enforcement officer who had entered her home. The husband and son were found guilty.
Next, the prosecution gave the defense attorney a plea offer, which would allow her to plead guilt to a misdemeanor assault and battery. The defense attorney never conveyed this offer to the plaintiff. Instead, he advised her to plead not guilty and go to a jury trial because "she had a 'slam dunk' case." He also allegedly failed to inform her that a guilty verdict on her felony charge would entail a mandatory minimum sentence of six months of incarceration.
The Plaintiff's trial then took place. The Plaintiff alleged that the defense attorney made the unilateral decision, without consulting with her, to reject the prosecution's jury instruction that incorporated the lesser-included offense of misdemeanor assault and battery because the defense attorney was employing a "felony or freedom" strategy. At trial, the jury returned a verdict on the felony assault and battery charge, and the Plaintiff was sentenced to the mandatory minimum of six months of incarceration.
While serving her sentence the Plaintiff filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. A year later, the habeas court granted her petition on the basis that the defense counsel's ineffective assistance of counsel prejudiced the plaintiff in a criminal matter, because of (1) the defense counsel's concurrent representation of the three defendants; (2) the defense counsel's failure to convey and explain the plea offer; (3) the defense counsel's failure to advise and consult with the plaintiff about the inclusion of a lesser-included misdemeanor offense in the jury instructions. The habeas court vacated her felony assault and battery conviction.
The Commonwealth elected to retry her for her actions giving rise to the original charges. The Plaintiff this time pled guilty to misdemeanor assault and battery. She was convicted of misdemeanor assault and battery and was sentenced to ten days of incarceration, with all ten days suspended.
The Plaintiff then brought a legal malpractice suit against her former criminal defense counsel.
In the malpractice action, the defendant filed a demurrer on the grounds that the plaintiff failed to state a claim upon which relief could be granted because she was not actually innocent of the criminal act of assault that was the basis of her prosecution. The argument was that although the felony assault and battery had been vacated, the plaintiff subsequently admitted guilt to misdemeanor assault and battery, and it was that guilt of a criminal act which was the proximate cause of her injuries. The trial court sustained the demurrer.
On appeal, the Virginia Supreme Court affirmed the trial court.
The Court began by pointing out that in the normal legal malpractice action, the essential elements are the existence of an attorney-client relationship which gave rise to a duty, breach of that duty, and that the damages claimed by the plaintiff must have been proximately caused by the defendant attorney's breach.
However, in a legal malpractice action arising out of a criminal matter, there are additional burdens of pleading, to ensure that courts do not assist the participant in an illegal act who seeks to profit from the act's commission. A criminal defendant may not profit from a crime in a subsequent legal malpractice action.
For that reason, a legal malpractice plaintiff, who alleges that malpractice occurred during the course of a criminal matter, must also plead (1) that the damages to be recovered were proximately caused by the attorney's malpractice and (2) were not proximately caused by the plaintiff's own criminal actions.
The Court reasoned that to adequately plead proximate causation in this case, the plaintiff was required to plead that the damages she seeks to recover were proximately caused by the legal malpractice and not by her own criminal conduct. However, the only pecuniary damage pled in the compliant was that her nursing license was suspended as a direct result of her felony conviction. There was no allegation that she would not have lost her nursing license based upon her conviction of misdemeanor assault and battery. Thus, the Court found that the plaintiff failed to plead damages flowing from her felony conviction that would not have been proximately caused by her misdemeanor sentence.
Secondly, with regard to the length of her jail time, the Court found that the plaintiff had adequately pled that but for the legal malpractice, she would have been sentenced to less than six months. However, the complaint failed to plead that her damages were proximately caused by legal malpractice, rather than by her own criminal conduct. The Court pointed out that "there is no basis to determine what sentence a circuit court would have imposed in the original criminal proceeding had [the defense attorney] not been negligent." This is because a defendant convicted of misdemeanor assault and battery is subject to a sentence of not more than twelve months and a find of $2,500, either or both. In the plaintiff's second criminal trial, her suspended sentence was after she had already served her original six month sentence. The original misdemeanor plea offer was not accompanied by a sentence recommended by the Commonwealth. Thus, there were no facts pled from which to draw the inference that, absent the legal malpractice, the circuit court would have imposed any shorter sentence than the six months that was imposed.
Accordingly, the Virginia Supreme Court affirmed the circuit court's judgment sustaining the demurrer.
Impact: This opinion explains in detail what elements a plaintiff must plead in the complaint to allege a cause of action for legal malpractice where the plaintiff was found guilty in the underlying criminal matter. It would be an over-simplification to say that under Virginia law, a person convicted of a crime cannot bring a legal malpractice claim against his or her criminal defense lawyer unless the conviction is overturned and there is a finding of not guilty. For example, in this case, the opinion suggests that the plaintiff might have stated a cause of action if she had pled that her nursing license would not have been suspended based upon a conviction of misdemeanor assault and battery. That would have been an allegation that she sustained pecuniary harm not proximately caused by her ultimate misdemeanor conviction.
To discuss the defense of a pending legal malpractice matter in Virginia, contact Carol T. Stone of Jordan Coyne LLP at 703-246-0900.
Posted by David. B. Stratton on 07/27/2015 at 01:00 PM