By David L. Duff of Duff & Kronfeld, P.C. posted in About the Law on Friday, March 1, 2019.
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!