How to sue your lawyer in Virginia.

Virginia is unusual: it treats a malpractice claim against a lawyer as a contract claim, even when it sounds like negligence. The Supreme Court of Virginia adopted that rule in Oleyar v. Kerr, 217 Va. 88 (1976), holding that an action for an attorney's negligence in performing professional services "is an action for breach of contract and thus governed by the statute of limitations applicable to contracts."

That makes Va. Code § 8.01-246 the key statute. In Virginia, a legal malpractice suit must be filed within 5 years if it rests on a written contract signed by the lawyer, and within 3 years if the agreement was unwritten, implied, or not signed by the lawyer. Read your engagement letter: whether the lawyer signed it can change your deadline by two years.

No discovery rule

Under Va. Code § 8.01-230, a contract claim accrues "when the breach of contract occurs" and "not when the resulting damage is discovered." Virginia does not apply a discovery rule to legal malpractice, so the limitations period can expire before the client learns of the mistake.

Continuous representation

Virginia does recognize continuous representation. In Keller v. Denny, 232 Va. 512 (1987), the court held that when malpractice occurs during a lawyer's work on a particular undertaking, the clock starts when the lawyer's services on that undertaking end, even if the general relationship continues. It does not apply to a single, isolated act, and work on other matters does not extend it.

Virginia has no separate statute of repose for legal malpractice. Compare states on the deadline table.

You must show the lawyer owed you a duty, breached it, and that the breach proximately caused your loss. In Smith v. McLaughlin (Va. 2015), the Supreme Court of Virginia described the usual structure as a case within a case: the client must prove the value of the lost claim, that the client would have prevailed, and the amount the fact finder would have awarded. See our case-within-a-case guide.

The same case settled a key money question. In Virginia, collectibility is an affirmative defense: the negligent lawyer, not the client, bears the burden of proving that a lost judgment could not have been collected.

On experts, the Supreme Court of Virginia has held that expert testimony is required to establish the elements of professional malpractice except where they fall within jurors' common knowledge (Seaward International, Inc. v. Price Waterhouse, 239 Va. 585 (1990), discussed in the legal malpractice case Gregory v. Hawkins, 251 Va. 471 (1996)). Plan on an expert witness. We found no certificate of merit requirement for suits against lawyers.

Virginia follows a strict rule. In Adkins v. Dixon, 253 Va. 275 (1997), the Supreme Court of Virginia held that a former criminal defendant must allege and prove that he obtained post-conviction relief, and that an adverse post-conviction ruling bars recovery. Smith v. McLaughlin summarized the rule this way: the plaintiff "must prove post-conviction relief and innocence." In Virginia, a convicted client cannot recover for criminal defense malpractice without first winning post-conviction relief, and the limitations period does not begin until that post-conviction proceeding ends. See criminal defense malpractice and ineffective assistance vs. malpractice.

Resolution of Fee Disputes Program

The Virginia State Bar runs a fee dispute program that offers mediation and arbitration. It cannot take a dispute that a court has already decided or that is pending in court, unless both sides sign an agreement to participate. In the Virginia State Bar fee program, disputes of $25,000 or less usually go to a single arbitrator, and larger disputes go to a three-member panel with at least one non-lawyer. Each side pays its own costs. See our guide to fee dispute arbitration.

Clients' Protection Fund

If a Virginia lawyer stole your money, the Virginia State Bar's Clients' Protection Fund may reimburse you. It covers losses from a lawyer's dishonest conduct, not malpractice or poor work, and it is a last resort after other sources. The Virginia fund may pay up to $100,000 to any one petitioner for losses incurred on or after July 1, 2021 (lower caps apply to older losses). Payments are discretionary. See client protection funds.

If you believe a lawyer violated the Rules of Professional Conduct, you can file a misconduct complaint with the Virginia State Bar. A bar complaint can lead to discipline, including loss of the license.

A Virginia State Bar complaint cannot award you damages for a lost case; only a lawsuit or settlement can. Filing a complaint does not stop the three- or five-year clock. See malpractice lawsuit vs. bar complaint.

Virginia lawyers are not required to carry malpractice insurance, but active members must tell the bar whether they have it, under Part 6, Section IV, Paragraph 18 of the Rules of the Supreme Court of Virginia. See does your lawyer have malpractice insurance.

Find your engagement letter and check whether the lawyer signed it. Write down the date of the mistake and the date the lawyer's work on that matter ended. Request your client file (how to get it). Then move quickly, because Virginia's clock may already be running.

1. Write a one-page timeline: when you hired the lawyer, what went wrong, when you learned of it, and when the lawyer stopped working on the matter.
2. Collect the engagement letter, bills, emails, texts, and court papers. Do not rely on the lawyer to keep them for you.
3. Separate money problems from outcome problems. A dispute over the bill or missing funds may belong with the Virginia State Bar fee dispute program or the Clients' Protection Fund, not in a lawsuit.
4. Estimate what the mistake actually cost you. A malpractice case has to prove real, measurable loss, and it must be worth the cost of experts.
5. Talk to an independent attorney who handles legal malpractice claims in Virginia well before the three or five years run out. Many take these cases on a contingency fee; see do legal malpractice lawyers work on contingency.

If you think your lawyer's mistake cost you, a free case review takes about two minutes.