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Are Criminal Defense Attorneys Immune from Legal Malpractice?

If a criminal defense attorney is negligent in his defense of an innocent individual charged with a crime, the consequences of that negligence are quite apparent, and devastating, as his or her client is led from the courthouse in handcuffs, and forced to serve a lengthy prison sentence. The prerequisite to this discussion, of course, is that the client is actually innocent of the crimes charged, and was wrongfully convicted as the result of the defense attorney's malpractice.

In its recent ruling styled Shevlin Smith v. Bruce McLaughlin, Record No. 140500, the Virginia Supreme Court has made a clear and unequivocal pronouncement that the innocent client referenced above is not entitled, under the laws of the Commonwealth of Virginia, to recover compensation from the negligent defense attorney for anything, except money lost while behind bars. In other words, the innocent client who is wrongfully committed of a crime he or she did not commit, as the result of the defense attorney's negligence, cannot pursue a malpractice claim against that same defense attorney for the years in prison and away from friends, family, and society in general. There can be no compensation for the loss of one's liberty; for the daily fears for one's safety while in prison; for the mental anguish, depression and utter frustration resulting from knowing that you did not commit the crime charged, and are only in prison because your defense attorney quite simply failed to properly perform his or her job.

These subjective elements are not "monetary losses" and, therefore, at least in the Commonwealth of Virginia, cannot be compensated through a legal malpractice suit. Accordingly, if you are unemployed, or a student, or a stay-at-home parent, such that years in prison do not directly cause a loss of income to you, then you are, effectively, precluded from suing your defense attorney, whose malpractice put you behind bars.

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Duff Kronfeld & Marquardt P.C.
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