Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff sued defendant attorney for breach of contract and malpractice allegedly arising from defendant’s representation in a drunken driving case, defendant’s demurrers to both claims are granted.
Contract claim
“Plaintiff first asserts a breach of contract claim alleging that Defendant breached a contract for legal services in that Plaintiff received ‘no valuable services’ from the fee he paid Defendant to defend him on his charges.
“The elements of breach of contract under Virginia law are ‘(1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation.’ …
“Plaintiff asserts that he contracted with Defendant to represent him on his drunk driving charges, but he does not assert that this contract guaranteed a certain outcome in his case.
“Further, he admits in his complaint that Defendant performed numerous legal services for him pursuant to this contract including counseling him regarding a plea deal, appearing in court on his behalf, answering his legal questions, and counseling him to seek a new attorney when he felt he could no longer adequately represent Plaintiff.
“Plaintiff fails to assert that Defendant breached his obligation to provide legal services to him. The demurrer is sustained, with prejudice, as to the breach of contract claim.”
Malpractice claim
“Plaintiff asserts a legal malpractice claim against Defendant for failure to adequately represent him, leading to his convictions for DUI and DUI maiming. Specifically, Plaintiff raises Defendant’s failure to properly investigate what he alleges was an inaccurate blood alcohol content report that was used as evidence against him in court.
“Under Virginia law, malpractice has three elements: (1) a relationship between the plaintiff and the lawyer that gave rise to a legal duty; (2) the attorney’s breach or neglect of that duty; (3) the neglect or breach caused the plaintiff to suffer loss. …
“However, when the alleged malpractice occurred during the course of representation in a criminal matter, a plaintiff must carry the additional burden of ‘proving damages to be recovered were proximately caused by the attorney’s negligence and were not proximately caused by the […] plaintiff’s own criminal actions.’ …
“Plaintiff has failed to state a case for legal malpractice because he has failed to adequately assert that his damages were not proximately caused by his own criminal conduct. While Plaintiff, in great detail, alleges that his blood alcohol content was falsely reported as .313 [percent] at the time of the accident, he has not pled that the damages he suffered from being convicted of DUI maiming and DUI were not proximately caused by his own actions.
“Even assuming, as Plaintiff pleads, the blood alcohol content reading was in some way flawed and Defendant failed to notice, Virginia law allows for conviction of DUI under Virginia Code § 18.2-266 (and by extension DUI maiming under Virginia Code§ 18.2-51.4) without a formal blood alcohol reading.
“A conviction for DUI may be supported by ‘one of five alternative methods of proof,’ including other proof of alcohol intoxication beyond a reasonable doubt. …
“Plaintiff has not pled that he would not have been convicted of DUI or DUI maiming absent an inaccurate blood alcohol content report, only that the report was inaccurate. He does not exclude other methods of proving his guilt. Instead, he contests the level of his intoxication at the time of the collision.
“Accordingly, Plaintiff has failed to assert that Defendant’s malpractice and not Plaintiff’s criminal acts proximately caused his damages.
“He has pled that the blood alcohol content report was inaccurate, and Defendant failed to properly raise concerns about it, which is not sufficient to state that Defendant was the proximate cause of his damages. The demurrer is sustained, with prejudice, as to the legal malpractice claim.
Ascue v. Dudley, Record No. CL21-1283, June 7, 2022, 23rd Circuit Court (Carson). Joseph T. Ascue, pro se, C. William Davis for defendant. VLW 022-8-043, 8 pp.
