Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Attorneys-Negligent Conduct and the related topic of legal malpractice. For more information on legal malpractice see the page on Wikipedia

Attorneys-Negligent Conduct: Statutes

See Va. Code § 26-5 indicating if any fiduciary or agent or attorney at law shall by negligence or improper conduct lose any debt or other money, he shall be charged with principal of what is so lost and interest thereon in like manner as if he had received such principal.

See Va. Code § 54.1-3906 indicating that every attorney shall be liable to his client for any damage sustained by him by neglect of his duty.

Attorneys-Negligent Conduct: Cases

2015 Desetti v. Chester, 290 Va. 50, 772 S.E.2d 907.

In this legal malpractice action against criminal defense lawyer, plaintiff must allege and prove that attorney’s malpractice resulted in a more severe conviction or longer sentence than necessary.

2015 Shevlin Smith v. McLaughlin, 289 Va. 241, 769 S.E.2d 7.

Legal malpractice action where lawyer who is being sued is acting in area of the law that was unsettled. In this instance there was no breach of duty. Court further ruled that defense of collectability imposes the burden on the defendant to prove such. Since legal malpractice claims are contract claims, there is no recovery for non-pecuniary damages such as pain and suffering. In addition, the Plaintiff’s damages based upon his escaping from jail when he had been wrongfully convicted was not a proper element of damage in this context. At trial, the Plaintiff sued for $6,000,000.00 but asked a jury to award $10,000,000.00. That should not have been allowed.

2010 Wintergreen Partners v. McGuire Woods, 280 Va. 374, 698 S.E.2d 913.

Law firm was accused of failing to timely file transcript of trial proceedings for purposes of appeal. Legal malpractice action against law firm fails because legal malpractice could not be proven as a matter of law since during the course of the trial the trial firm failed to properly preserve objections and, as such, filing of transcript in effect became irrelevant.

2010 Johnson v. Hart, 279 Va. 617, 692 S.E.2d 239.

A sole testamentary beneficiary in their individual capacity could not maintain a legal malpractice action against the attorney for the estate based upon the attorney’s alleged negligent services.

2009 Williams v. Joynes, 278 Va. 57, 677 S.E.2d 261.

In this legal malpractice action, defendant attorney contended that plaintiff’s failure to file suit in other jurisdiction where statute of limitations had not expired was superseding event that severed the link of proximate causation. Trial court improperly granted sum- mary judgment on that issue. That issue should have been submitted to the jury for determination.

2007 Little v. Cooke, 274 Va. 697, 652 S.E.2d 129.

In this partnership derivative suit counts for breach of fiduciary duty in legal malpractice were set forth.

2006 Cox v. Geary, 271 Va. 141, 624 S.E.2d 16.

Attorneys-negligent conduct.Plaintiff was wrongfully convicted of criminal charges. He settled his claim for that wrongful conviction with the Commonwealth and in doing that, released his claim against his attorney for legal malpractice. In this instance, the plaintiff suffered one injury and having released the Commonwealth for all claims relating to that injury, he released all others as Va. Code § 8.01-35.1 does not apply since the attorneys are not joint tortfeasors with the Commonwealth. Therefore, release of one constitutes a release of all. A legal malpractice claim is not a tort claim but is a contract claim and, as such, there could be no joint tort liability between the attorneys and the Commonwealth.

2003 Taylor v. Davis, 265 Va. 187, 576 S.E.2d 445.

Attorneys-negligent conduct.Legal malpractice action where client sued attorney alleging that he received negligent advice from attorney that there were no appealable issues in regards to his unlawfully operating a moped. In fact, moped is not motor vehicle as defined under state code. As such, client was not guilty of offense. Client properly pleaded legal malpractice action but did not plead that he received post conviction relief. In fact, client received post conviction relief but had not pleaded it. Trial court improperly struck client’s claim on demurrer. In this case where it is apparent in pleadings as a matter of law that client was innocent because offense for which he was convicted did not constitute crime, this constitutes sufficient allegation to make out claim against criminal defense attorney.

2003 Whitley v. Chamouris, 265 Va. 9, 574 S.E.2d 251.

Attorneys-negligent conduct.In this legal malpractice action, trial court properly ruled that expert testimony was not required as to the issue of causation. Client in this case alleged that attorney had improperly agreed to dismissal of some of his claims. In a legal malpractice action such as this one which involves a case within the case, the plaintiff must present sufficient evidence to convince jury that he would have prevailed in the underlying case absent the attorney’s alleged negligence. The expert testimony which the attorney maintains here was necessary as would have involved a prediction of what some other fact finder would have concluded or an evaluation of the legal merits of the client’s claim. That testimony is not allowable under Va. Code § 8.01-401.3

2002 O’Connell v. Bean, 263 Va. 176, 556 S.E.2d 741.

Legal malpractice action. Action for negligence of attorney in performance of professional services while sounding in tort, it is in fact an action for breach of contract whether framed as breach of fiduciary duty or constructive fraud claim. For this reason, punitive damages may not be awarded for any such breaches in absence of an independent, willful tort giving rise to such damages.

2002 Rutter v. Jones, Blechman, Woltz & Kelly, 264 Va. 310, 568 S.E.2d 693.

In legal malpractice action in which administrator of decedent’s estate alleged that attorneys negligently prepared decedents testamentary documents, trial court properly granted demurrer on grounds that executor of estate cannot maintain action for legal malpractice in preparation of such documents. Va. Code § 8.01-25, in derogation of common law, provides that cause of action shall survive either death of person against whom the cause of action is or may be asserted or the death of the person in whose favor the cause of action existed. This provision limits survival to those claims which existed before the decedent’s death. In this case, the damage occurred after the death; the damage being the increased tax liability as a result of the attorney’s negligence.

2001 Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666.

In this derivative action, attorney’s conduct regarding formation of competitor to closely held corporation was not proximate cause of injuries to corporation since there was no evidence that attorney had known of or participated in the diversion of corporation’s assets through their transfer to competitor.

1999 Cardinal Holding Co. v. Deal, 258 Va. 623, 522 S.E.2d 614.

Trial court awarded sanctions against attorney for not knowing that legal malpractice claims were not assignable pursuant to prior decision. Award of attorney fees upheld. Award of attorney fees is not to be punitive. In this case, no punitive damages awarded but attorney’s fees award by trial court was upheld.

1997 Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797.

Plaintiff in legal malpractice action alleging negligence on the part of his criminal defense attorney must plead and establish post-conviction relief and his own innocence.

1997 Ripper v. Bain, 253 Va. 197, 482 S.E.2d 832.

Attorneys-negligent conduct.Client retained attorney for purpose of determining whether road that ran through property that was to be purchased could, in fact, be blocked off. Attorney expressed opinion that road could be blocked off. Plaintiff presented evidence that this was violation of standard of care and as result plaintiff purchased property. The measure of damages in this case is difference between purchase price and fair market value. Attorney in this case happened to be a member of the Board of Supervisors and expressed opinion as to what approach the Board of Supervisors might take to portion of road. This was not malpractice but was pure speculation.

1996 Gregory v. Hawkins, 251 Va. 471, 468 S.E.2d 891.

Attorneys-negligent conduct.Attorney retained to assist in conducting sale of business. Prior to settlement, purchaser alleged misrepresentations by seller as to condition of business. Attorney prepared indemnity agreement wherein seller agreed to indemnify purchaser as to any such misrepresentations. Purchasers did settle and then subsequently sued seller alleging fraud and breach of the indemnity agreement. The seller now alleges malpractice on part of the attorney in advising her to sign indemnity agreement. Even if this was negligence, there is no evidence of that being proximate cause of damage since there were allegations of actual fraud. Nothing in record established that absent indemnity agreement purchasers would not have filed the initial suit.

1996 Hazel & Thomas, P.C. v. Yavari, 251 Va. 162, 465 S.E.2d 812.

Attorneys-negligent conduct.Attorneys alleged to be negligent in terms of not properly structuring contract so as to protect client. Issue is whether or not that negligence created client’s eventual liability upon default. No evidence presented that other party to contract would have agreed to terms now deemed necessary or that client would have walked away from deal if advised by attorney that these terms were necessary. As such, there is no evidence of proximate cause.

1995 Hendrix v. Daugherty, 249 Va. 540, 457 S.E.2d 71.

Attorneys-negligent conduct.Legal malpractice action wherein defendants maintained that causation had not been properly alleged. Plaintiffs assertion that they would have prevailed in underlying action but for negligence of defendants was sufficient.

1995 Lyle, Siegel v. Tidewater Capital Corp., 249 Va. 426, 457 S.E.2d 28.

Attorneys-negligent conduct.Legal malpractice action where attorney involved was not only member of firm but was also officer of plaintiff corporation. Contributory negligence is available as defense in a legal malpractice action. Jury issue presented as to whether or not Siegel’s knowledge and actions may be imputed to plaintiff corporation and as such jury issue presented as to contributory negligence. Conflicting expert testimony presented as to whether or not contracts were accounts receivable or chattel paper and whether attorney was simply following instructions of plaintiff in perfecting security interest in accounts receivable. Jury issue presented as to liability of attorney. Measure of damages in legal malpractice action may be difference between value of what client bargained for and value of what client actually received.

1995 Heyward & Lee Constr. Co. v. Sands, Anderson, Marks & Miller, 249 Va. 54, 453 S.E.2d 270.

Attorneys-negligent conduct.Legal malpractice action against attorneys for failure to join trustees and beneficiaries in mechanics lien action. Court ruled as a matter of law no negligence given change in law subsequent to filing.

1992 Campbell v. Bettius, 244 Va. 347, 421 S.E.2d 433.

Attorneys-negligent conduct.Client alleged that attorney gave bad advice as to effect of release on client’s right to recover against guarantors on note. Client presented evidence that bad advice led to their non-recovery against guarantors, but presented no evidence of whether they would have fully recovered on underlying action on promissory note, therefore, malpractice claim fails.

1992 Duvall, Blackburn, Hale & Downey v. Siddiqui, 243 Va. 494, 416 S.E.2d 448.

Attorneys-negligent conduct.Attorney misrepresented that support order had been entered in domestic case. In fact, order not entered. Measure of damages is difference between what client would have gotten with order and what client did get without order. Defendant asserts that wife never proved measure of damages since proximate cause of injury to wife was husband’s failure to consent to terms in order. Supreme Court rejected this.

1992 Goldstein v. Kaestner, 243 Va. 169, 413 S.E.2d 347.

Attorneys-negligent conduct.Attorney failed to file timely appeal. Standard on review is whether client can prove that, if timely appeal had been filed, as a matter of law, judgment against him would have been reversed and judgment entered in his favor. Plaintiff in this case failed to meet that standard.

1989 Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593.

Attorneys-negligent conduct.Where claim is for purely economic loss, then privity of contract is required. Plaintiff, in this case, proceeded on theory they were intended third-party beneficiary of grandparents’ will drawn by defendant attorney. They never alleged, however, they were intended beneficiary of contract between grandparent and attorney; therefore, no claim. Will is not contract in this case.

1989 Williams v. Consolvo, 237 Va. 608, 379 S.E.2d 333.

Attorneys-negligent conduct.Once plaintiff retained new counsel, then defendant no longer responsible for advising client on how to proceed.

1989 Allen v. Lindstrom, 237 Va. 489, 379 S.E.2d 450.

Attorneys-negligent conduct.Although this was not legal malpractice case, court commented that attorney’s primary duty is to his client. While lawyer owed general duty to judicial system, it is not type of duty that translates into liability to adversary for negligence where there is no foreseeable reliance by adversary on attorney’s action.

1986 Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170.

Attorneys-negligent conduct.Attorney failed to register condo project. $75,000 verdict upheld.

1985 Musselman v. Willoughby, 230 Va. 337, 337 S.E.2d 724.

Attorneys-negligent conduct.Real estate transaction. Attorney had duty to disclose anything known to him which might affect his client’s decision whether or how to act. He has duty to disclose information necessary to enable client to understand those contract provisions that have potential for affecting client adversely. In this case, attorney failed to advise client that in real estate contract where buyer signs individually “or assigns,” this language may release buyer from personal liability.

1985 Rodgers v. Davenport, 229 Va. 437, 331 S.E.2d 389.

Client revoked attorney’s authority to settle case before attorney communicated acceptance to opposing side. Jury issue created.

1981 Ortiz v. Barrett, 222 Va. 118, 278 S.E.2d 833.

Virginia co-counsel was not liable for negligence of District of Columbia chief counsel, where Virginia attorney’s obligation to client and his responsibilities were limited to work assigned him and no joint venture could be established without contract between attorneys.

1980 Ayyildiz v. Kidd, 220 Va. 1080, 266 S.E.2d 108.

Attorney and client filed unsuccessful malpractice action against doctor. Malicious prosecution action against attorney alleging negligence. Attorney owed no legal duty to doctor.

1978 Wilder v. Committee, 219 Va. 175, 247 S.E.2d 355.

Decision to obtain judgment against defendant regardless of defendant’s financial responsibility or his or her uninsured status is decision which should be made by client and not by attorney. Action by attorney in voluntarily dismissing action without knowledge and consent of clients, thus barring recovery by clients, was improper and without justification; constituted unprofessional conduct and warranted reprimand.

1977 Allied Prods., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774.

When client has suffered judgment for money damages as proximate result of lawyer’s negligence, such judgment constitutes actual damages recoverable in suit for legal malpractice only to extent such judgment has been paid. Motion for judgment failed to allege such actual damages; not error to sustain demurrer.

1966 Aetna v. Price, 206 Va. 749, 146 S.E.2d 220.

Claim made against defense counsel that in action in District of Columbia, motion to dismiss for forum non conveniens should have been filed. Expert testimony indicated no basis for motion.

1965 Katzenberger v. Bryan, 206 Va. 78, 141 S.E.2d 671.

Attorneys-negligent conduct.Defendant attorney performed title search. Plaintiff client relied thereon and paid for property that seller did not own. Settlement by plaintiff with seller did not bar tort claim against defendant.

1960 Hess v. Friedberg, 201 Va. 572, 112 S.E.2d 871.

Attorneys-negligent conduct.Breach of employment contract against attorney in reference to real estate transaction. Attorney failed to advise client of effect of encumbrance on property. Client settled with seller of property. This settlement did not constitute release of attorney.

1954 Fowler v. Tobacco Growers, Inc., 195 Va. 770, 80 S.E.2d 554.

Attorneys-negligent conduct.Any attorney by virtue of his relationship to his client is under certain obligations to client which he is bound to perform with fidelity and with reasonable care and skill. If he fails in performance of these duties, he may become personally liable to his client for loss resulting from his action.

1953 Patterson v. Anderson, 194 Va. 557, 74 S.E.2d 195.

Attorneys-negligent conduct. Where plaintiff sues administrator of estate for failure to prosecute wrongful death action and where statute provides that jury shall have absolute discretion as to who shall receive any part of recovery, it is entirely speculative and incapable of proof that plaintiff would have been awarded any part of recovery; therefore, no cause of action has been stated.

1951 Glenn v. Haynes, 192 Va. 574, 66 S.E.2d 509.

Attorneys-negligent conduct. Attorneys are held to standard of reasonable degree of care, skill and dispatch and they are liable if guilty of default of either of those duties whereby their clients are injured and this liability of attorney is not affected by client’s diligence or want of it unless stipulated to by special contract.

1951 Nicholson v. Shockey, 192 Va. 270, 64 S.E.2d 813.

Gift by client to attorney of funds which attorney has in his hands is presumed fraudulent.