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Keywords

plaintiffdefendantattorneytrialpleaburden of proofmalpracticewilllegal malpractice

defendantattorneytrialpleawillsustained

Related Cases

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

Facts

Jeffrey Scott Adkins, an indigent convicted felon, was represented by court-appointed attorney Thomas W. Dixon, Jr. during his criminal prosecution for multiple felonies. Adkins claimed that Dixon was negligent in failing to assert a speedy trial defense, which he believed led to his wrongful convictions. After being found guilty, Adkins filed a pro se action against Dixon for malpractice, which was later consolidated with a similar case against Dixon's law firm.

Adkins, an indigent, was arrested, incarcerated, and charged with ten felonies 'all stemming from a single criminal episode' that occurred in Augusta County.

Issue

Whether a court-appointed attorney and his employers are entitled to governmental immunity in legal malpractice actions, and whether the actions can be maintained without allegations that Adkins was innocent and that his convictions were set aside in post-trial proceedings.

The dispositive issues are (1) whether a court-appointed attorney and his employers are entitled to governmental immunity in these actions and, if not, (2) whether the actions can be maintained without allegations that Adkins was innocent and that Adkins's convictions were set aside in post-trial proceedings.

Rule

A post-conviction ruling adverse to a defendant will prevent recovery for legal malpractice, and a plaintiff must allege and prove that they have obtained post-conviction relief as part of their cause of action.

As we said in Zysk v. Zysk, 239 Va. 32, 34, 404 S.E.2d 721, 722 (1990), 'courts will not assist the participant in an illegal act who seeks to profit from the act's commission.'

Analysis

The court concluded that the trial court did not abuse its discretion in allowing the amendment of pleadings by Dixon's firm. It also found that court-appointed counsel do not have governmental immunity in these cases, as they do not have the same relationship to their clients as retained counsel. The court emphasized that Adkins's actual guilt was the proximate cause of his convictions, not Dixon's alleged failure to assert a speedy trial defense.

We perceive no significant difference between the facts in this case and those in Herndon. Applying the Herndon rationale, we conclude that Adkins has not shown that the trial court abused its discretion in permitting the amendment.

Conclusion

The court affirmed the trial court's dismissal of Adkins's malpractice claims against Dixon and his law firm, as Adkins failed to prove the necessary elements of his case.

Therefore, we conclude that the trial court correctly sustained ground (b) of the defendants' demurrers.

Who won?

Defendants (Dixon and his law firm) prevailed because the court found that Adkins did not meet the burden of proof required to establish his claims of legal malpractice.

Defendants' counsel sought leave to amend and supplement Dixon's pro se pleadings by asserting a special plea of governmental immunity arising from Dixon's representation of Adkins as court-appointed counsel, and by setting forth that: '[Adkins] has not alleged, as he must, that (a) he is innocent of the charges that resulted in his conviction; and (b) he has secured reversal of his conviction in post-trial proceedings.'

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