12 Mar Virginia: Special Cases – a Lawyer’s Malpractice
On February 26, 2014, the Virginia Supreme Court issued Shevlin Smith v. Laughlin, No. 140500. Its 39-page opinion settled several issues in this special case of alleged legal malpractice in Fairfax Circuit Court, Virginia.
First, while declining to adopt attorney “judgmental immunity” as a “rule,” Shevlin Smith “recognized under traditional standard of care principles that an attorney’s reasonable but imperfect judgment regarding an unsettled legal issue does not give rise to liability,” as a matter of law. Id. at 12. The Virginia Supreme Court held that “if an attorney exercises a ‘reasonable degree of care, skill, and dispatch’ while acting in an unsettled area of the law, which is to be evaluated in the context of ‘the state of the law at the time’ of the alleged negligence, then the attorney does not breach the duty owed to the client.” Id.
Second, Shevlin Smith held “collectability limits the measure of the legal malpractice plaintiff’s damages to how much the legal malpractice plaintiff could have actually recovered from the defendant in the underlying litigation absent the attorney’s negligence, not simply to the face value of the lost claim.” Id. at 21. However, the Virginia Supreme Court delineated that collectability is “not an element of a legal malpractice plaintiff’s prima facie case,” id. at 22; and placed “the burden of pleading and proving collectability on the negligent attorney as an affirmative defense;” id. at 24; though Justice McClananan dissented that it should be Plaintiffs’ burden of proof. Id. at 37-39.
Third, expressly joining New York on the point, Shevlin Smith held that a “legal malpractice plaintiff may recover only pecuniary damages proximately caused by an attorney’s breach of the contractually implied action.” Id. at 29. The Virginia Supreme Court noted that the only exception relates to “whether punitive damages are available,” id. at 30; and emphasized that non-pecuniary damages are not recoverable for legal malpractice. Id. at 31.
Fourth, Shevlin Smith held that the legal malpractice plaintiff could not recover damages for lost income from an “act of his own free will”. Id. at 33. The Virginia Supreme Court explained that such was an “intervening act” and a “superseding cause”. Id. at 33-34.
Fifth, Shevlin Smith held that “a plaintiff may not request from the jury, in either opening statement or closing argument, an amount of damages that exceeds the amount of plaintiff’s ad damnum.” Id. at 35. Accordingly, the Virginia Supreme Court vacated the jury award and remanded the case. Id. at 36.