769 S.E.2d 7
Va.2015Background
- Bruce McLaughlin was convicted in 1998 of multiple felony sexual abuse charges, later vacated on habeas; retrial in 2002 resulted in acquittal. He was imprisoned ~4 years.
- McLaughlin sued his criminal defense attorneys for malpractice; one defendant (Volzer et al.) had $2,000,000 insurance, another (Schewe & Graham) settled for $50,000 under a Release Agreement negotiated by Shevlin Smith (McLaughlin’s subsequent counsel in the malpractice suit against the criminal lawyers).
- Four months after the Release Agreement, the Virginia Supreme Court decided Cox v. Geary, holding Code § 8.01-35.1 did not apply to legal malpractice claims; using Cox, Volzer obtained dismissal of McLaughlin’s suit against them as released by the earlier settlement.
- McLaughlin then sued Shevlin Smith (his counsel that negotiated the $50,000 release) for legal malpractice, alleging numerous breaches including failure to anticipate Cox and failure to advise about Graham’s collectibility or conflicts. A jury awarded $5.75 million; Shevlin Smith appealed.
- The Supreme Court of Virginia granted review and considered (inter alia) (1) whether an attorney breaches duty by failing to predict unsettled law, (2) whether collectibility is relevant to damages when a viable claim was lost, and (3) whether non-pecuniary damages are recoverable in legal malpractice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney breaches duty by failing to anticipate a change in unsettled law | McLaughlin: Shevlin Smith should have foreseen Cox and thus breached by executing the release | Shevlin Smith: No breach as a matter of law; judgmental immunity for reasonable judgments in unsettled law | Court: No per se immunity, but as a matter of law Shevlin Smith did not breach by reasonably acting under the state of law existing at the time (release was reasonable) |
| Whether collectibility of an underlying judgment is an element plaintiff must prove | McLaughlin: Collectibility irrelevant; damages equal value of lost claim | Shevlin Smith: Plaintiff must prove what would have been collectible; otherwise verdict may exceed recoverable loss | Court: Collectibility is relevant but not a prima facie element; burden to plead/disprove uncollectibility lies with defendant as an affirmative defense |
| Whether non-pecuniary damages (pain and suffering, emotional distress, wrongful incarceration) are recoverable in legal malpractice | McLaughlin: Non-pecuniary and wrongful incarceration damages recoverable | Shevlin Smith: Legal malpractice sounds in contract; contract damages should be limited to pecuniary losses | Court: Legal malpractice measured as contract damages; non-pecuniary damages are not recoverable (pecuniary damages only); wrongful incarceration’s pecuniary aspects may be recoverable but non-pecuniary ones are not |
| Whether plaintiff could argue/request damages exceeding his ad damnum in opening/closing | McLaughlin: Permitted to request larger award in argument | Shevlin Smith: Request exceeded pleaded ad damnum and lacked evidentiary support | Court: Plaintiff may not request awards exceeding the ad damnum; trial court erred in allowing $10M request when ad damnum was $6M |
Key Cases Cited
- Cox v. Geary, 271 Va. 141 (Va. 2006) (holding Code § 8.01-35.1 did not apply to legal malpractice claims)
- Whitley v. Chamouris, 265 Va. 9 (Va. 2003) (plaintiff in malpractice must show how attorney's negligence in underlying proceeding caused damages)
- Ripper v. Bain, 253 Va. 197 (Va. 1997) (attorney must exercise reasonable degree of care, skill, and dispatch)
- Heyward & Lee Constr. Co. v. Sands, Anderson, Marks & Miller, 249 Va. 54 (Va. 1995) (breach ordinarily question for fact but becomes law when reasonable minds cannot differ)
- Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 (Va. 1987) (common-law rule on release of co-defendants for indivisible injury)
- Exxon Mobil Corp. v. Minton, 285 Va. 115 (Va. 2013) (requiring reversal/vacatur when award may rest on invalid theory and cannot determine basis of jury’s verdict)