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McClung v. Smith - A Legal Malpractice Nightmare!

David L. DuffIn late-1994, Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia (Richmond Division) published his decision, sitting as the tier-of-fact, in the legal malpractice case styled Constance McClung v. William Smith, Jr., et al. 870 F. Supp. 1384. The legal malpractice action arose from a botched divorce case; and, involves a veritable cornucopia of examples of what NOT to do when handling a divorce case. For some reason, perhaps because it came from the Federal Court system, this decision received little-to-no fanfare; and, among the entire constellation of attorneys in this Commonwealth, only us legal malpractice nerds are even aware of its existence.

You Should Always Execute a Written Fee Agreement with your Attorney

In Virginia, the relationship between and attorney and client is considered to be contractual in nature. As such, any claim for legal malpractice against your attorney is governed by the statute of limitations for a breach of contract action: three (3) years for an oral agreement and five (5) years for a written agreement. Because of this, whenever you engage the services of an attorney, it is crucial that you execute a written fee agreement outlining the scope of services to be provided.

Are Criminal Defense Attorneys Immune from Legal Malpractice?

If a criminal defense attorney is negligent in his defense of an innocent individual charged with a crime, the consequences of that negligence are quite apparent, and devastating, as his or her client is led from the courthouse in handcuffs, and forced to serve a lengthy prison sentence. The prerequisite to this discussion, of course, is that the client is actually innocent of the crimes charged, and was wrongfully convicted as the result of the defense attorney's malpractice.

What Damages Can Be Recovered in a Legal Malpractice Suit?

By: David L. Duff
If you sue your doctor for committing medical malpractice, you are pursuing the tort of negligence. As a result, you may seek compensation for damages that are recognized as allowable under tort law, which includes not only your monetary losses (i.e., medical bills, lost income, etc.), but also any subjective, non-monetary losses (i.e., pain and suffering, mental anguish, inconvenience, etc.). However, different rules apply when you sue your lawyer for legal malpractice. Virginia views that relationship of attorney-client as being contractual in nature; therefore, any mistakes made by your lawyer constitute a breach of the contract of employment, as opposed to the tort of negligence. The natural question becomes: "So what?"
Because legal malpractice is viewed by the Virginia courts as a breach of contract, the lawyer is liable only for the economic, i.e. monetary, losses that his or her mistake has caused the client. You, as the client, are not allowed to be compensated for any subjective, non-monetary damages you may have sustained; but rather, you are limited to recovering only the amount of money that you can show you lost as the result of your lawyer's mistake(s).
As a practical matter, this inordinately harsh, but absolute, principle of legal malpractice law operates to create some extremely sad and unfair results. The mother who loses custody of her children because her attorney chose to go on vacation instead of attending her custody trial, has suffered a huge, emotional trauma and loss; however, because it is not an economic loss, she cannot viably sue her vacationing lawyer for legal malpractice.
The client whose criminal defense attorney fails to present even the most basic of a defense to a criminal charge of which he/she is 100% innocent, ends up being wrongfully convicted and spending years in prison. This innocent client cannot seek damages from the incompetent lawyer for mental anguish, daily fear and depression, and his/her loss of liberty, because those losses are not "economic" in nature.
Welcome to the Commonwealth of Virginia, where laws are made by attorneys - and tend to protect attorneys!
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By: David L. Duff, Esquire
Virginia views the relationships of attorney-client as a contractual one, which can be created either orally, or through a written document. If your lawyer makes a mistake in the handling of your legal matter, and, as a result, you are damaged, then the period of time available to you for suing your lawyer for compensation will depend upon the nature of your contract of employment. This period of time is referred to as the "statute of limitations".
If you hire an attorney orally, whether over the telephone, or simply with a handshake, then the statute of limitations is three (3) years, beginning on the last day that the attorney worked on your legal matter. This means that, if the attorney makes a mistake that causes you to somehow lose money, then you are required to sue that attorney within three (3) years - or forever be barred from doing so!
Most attorneys prefer to have a written agreement with their clients, which expressly sets forth the legal matter for which they are being hired, as well as the financial terms of the hiring. With such a written agreement, the statute of limitations is thereby extended to five (5) years, commencing on the date that the attorney last worked on your legal matter.
In view of the difference in the statute of limitations that is available to you, should you find yourself in the position of having to sue your lawyer, it is important that you always insist that there be some documentation that establishes the hiring of the attorney and, hence, the creation of an attorney-client relationship. This will, then, provide you with the longer statute of limitations (5 years).
If you have concerns about the quality of the legal services provided by your lawyer, call The Duff Law Firm at (703) 591-7475 to schedule a complimentary consultation with one of our attorneys.
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Insufficient Filing Fees - Another Malpractice Trap

In order to file most lawsuits in Virginia, a plaintiff is required to pay the Clerk's Office a filing fee in an amount that is often correlated to the nature and amount of the lawsuit. What many do not realize is that this fee is not some peripheral requirement, but is a condition of the lawsuit being considered to have been filed at all.

My Attorney Committed Legal Malpractice. What Will I Get If I Sue Him?

The extent of your injury, and thus what you might recover from your attorney in a legal malpractice case, is a crucial question in determining whether you have a claim that is financially prudent for you to pursue. If your damages are low or speculative, then you or your attorney may be taking a big risk in investing time and money in trying to recover something. For that reason, one of the first areas of analysis - before even addressing whether your attorney committed malpractice - can sometimes be what the nature of your injuries are.

Lawyer Malpractice

Patients who have been injured through the negligence of their doctors have very little hesitancy in suing for medical malpractice; however, clients who sustain losses as the result of negligence by their lawyers seldom pursue a claim for legal malpractice. Lawyers, just like doctors, are required to perform their services to within a certain standard of care. If a lawyer's actions on behalf of a client fail to meet the required standard of care, then that lawyer has committed legal malpractice; and, the unsuspecting client often bears the loss.

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