Client’s Legal Malpractice Claims Advances

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A Loudoun County Circuit Court denies cross-motions for summary judgment filed by the parties in a suit alleging defendants committed legal malpractice in asserting a claim for the spousal elective share by filing a counterclaim against decedent’s estate in the estate’s suit for aid and direction.

This matter concerns the actions of de­fendants during the course of their legal representations of plaintiff while seeking benefits eligible to her from the estate of her late husband, who died on March 27, 2012. Plaintiff contends defendants com­mitted malpractice in asserting a claim for the spousal elective share by way of filing a counterclaim against the husband’s estate in the estate’s suit for aid and direction. The trial court later dismissed plaintiff’s claim for the spousal elective share based on plaintiff’s failure to comply with Va. Code § 64.2-302.

The statute provides that a claim to an elective share shall be made either in per­son before the court having jurisdiction over administration of the decedent’s es­tate, or by a writing recorded in the court or the clerk’s officer, upon such acknowledge­ment or proof as would authorize a writing to be admitted to record.

Plaintiff contends that, as a matter of law, defendants committed malpractice by failing to strictly adhere to the require­ments of Code § 64.2-302.

Judgment immunity rule

Defendants contend the plain applica­tion of the judgment immunity rule as set forth in Smith v. McLaughlin,289 Va. 241 (2015), insulates them from plaintiff’s legal malpractice claim. The court in Smith 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.

Defendants assert the state of the law regarding the interpretation of § 64.2-302 at the time of the alleged negligence was unsettled and therefore defendants did not breach the duty owed to plaintiff. Plaintiff contends the statute and the case law are clear and settled.

Ordinarily, the determination of whether an attorney breached a duty to a client is a question of fact for the fact finder, after considering testimony of expert witnesses. However, this determination becomes an issue of law when reasonable minds could not differ on the issue.

Here, this court finds that reasonable minds could differ on the issue of wheth­er the state of the law at the time of the alleged negligence – i.e., the interpretation of § 64.2-302 – was unsettled. This matter is inappropriate for summary judgment at this time.

Defendants’ motion for summary judg­ment and plaintiff’s motion for partial summary judgment are denied.

Estes v. Fallon, Myers & Marshall LLP (Horne) No. CL 15-131-00, May 6, 2016; Mi­chael T. Marr, Bryan G. Bosta for the par­ties. VLW 016-8-059, 3 pp.