How to sue your lawyer in West Virginia.

Negligence claims against lawyers fall under the two-year statute of limitations in W. Va. Code § 55-2-12. In VanSickle v. Kohout, 215 W. Va. 433 (2004), the Supreme Court of Appeals held that a West Virginia legal malpractice claim accrues when the malpractice occurs, or when the client knows, or by reasonable diligence should know, of the malpractice, which is the discovery rule.

The same case held that once you end the relationship with the lawyer who made the mistake, efforts by new counsel to reverse or reduce the harm through appeals do not toll the deadline. The clock keeps running while your new lawyer tries to fix things.

Continuous representation

In Smith v. Stacy, 198 W. Va. 498 (1996), the court recognized the continuous representation doctrine, which tolls the deadline until the representation in the matter underlying the claim ends. It applies only when the lawyer's later work is for the same or related services, not when the later role is only tangentially related. The question is when the representation on that specific matter concluded.

Contract claims

Smith v. Stacy also reaffirmed that a malpractice action "may be brought on contract or in tort," and that a tort bar does not defeat a contract claim that is still timely. In West Virginia, a malpractice claim that is too late as a 2-year tort claim may still be brought as a contract claim, which W. Va. Code § 55-2-6 allows for 5 years on an unwritten contract and 10 years on a signed written contract. Whether your complaint truly states a contract claim depends on its facts. West Virginia has no separate statute of repose for lawyers. See the 50-state deadline table.

West Virginia's elements are short. As the court restated in Humphries v. Detch, 227 W. Va. 627 (2011), quoting Calvert v. Scharf, 217 W. Va. 684 (2005): a West Virginia legal malpractice plaintiff must prove (1) the attorney's employment, (2) the attorney's neglect of a reasonable duty, and (3) that the negligence was the proximate cause of loss to the plaintiff.

Proximate cause usually means the case within a case. In Coffield v. McArdle (W. Va. 2022, memorandum decision), the court affirmed summary judgment for a lawyer because the client produced no evidence, "by expert testimony or otherwise," that she would have prevailed on the claim that was lost. See our case-within-a-case guide.

We did not find a West Virginia syllabus point that requires an expert witness in every legal malpractice case, but in practice experts carry most of these claims, both on the standard of care and on causation. West Virginia does not require a certificate of merit for suits against lawyers.

In Humphries v. Detch, 227 W. Va. 627 (2011), the Supreme Court of Appeals joined the majority of states. In West Virginia, a client suing a criminal defense lawyer must prove by a preponderance of the evidence that he is actually innocent of the offense and any lesser included offenses involving the same conduct, and there is no claim while the conviction stands. In Mooney v. Frazier, 225 W. Va. 358 (2010), the court also held that a lawyer appointed by a federal court to defend a criminal case in West Virginia has absolute immunity from state-law malpractice claims. See criminal defense malpractice and can you sue a public defender.

Voluntary Fee Dispute Resolution Program

The West Virginia State Bar's Voluntary Fee Dispute Resolution Program helps clients and lawyers work out disagreements over fees and costs. Either side sends a description and documents to the State Bar's Executive Director, and the matter is assigned to a member of the District Grievance Committee in the client's county, who contacts both sides. West Virginia's fee program is informal and voluntary, and the committee member is asked to finish resolution efforts within 30 days. See fee dispute arbitration.

Lawyers' Fund for Client Protection

The State Bar's Lawyers' Fund for Client Protection reimburses losses caused by a lawyer's dishonest conduct, such as theft or embezzlement, arising from a lawyer-client or fiduciary relationship. Under the fund's rules, the committee may recommend up to $20,000 per claim and $40,000 per attorney per year, subject to change by the Board of Governors. Claims must be filed within two years after you knew or should have known of the dishonest conduct and the loss. See how to get money back from a client protection fund.

Complaints about West Virginia lawyers go to the Office of Lawyer Disciplinary Counsel, governed by the Lawyer Disciplinary Board (22 members, 15 lawyers and 7 lay people). The office posts a complaint packet and form online.

A West Virginia disciplinary complaint cannot award you money for a lost case, and it does not pause the 2-year malpractice deadline. Discipline and a lawsuit run on separate tracks. See malpractice lawsuit vs. bar complaint.

West Virginia lawyers are not required to carry malpractice insurance, but under State Bar Bylaw 4.01 each active member must disclose financial responsibility for professional liability claims with the annual membership payment. See does your lawyer have malpractice insurance.

Pin down when you first knew of the mistake and when the lawyer stopped working on that matter. Find your fee agreement, since a written contract signed by the lawyer can matter for a contract claim. Request your client file (how to get it).

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 Voluntary Fee Dispute Resolution Program or the Lawyers' Fund for Client Protection, 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 West Virginia well before the two 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.