By Susann Nordvik

“Every attorney shall be liable to his client for any damage sustained by the client through the neglect of his duty as such attorney.”[1]  Neglect of duty is a somewhat euphemistic way to refer to common negligence.  Consequently, in most states in the Union, an attorney who has committed malpractice may expect to receive a complaint both for the breach of the Attorney/Client Fee Agreement or retainer agreement, as well as a claim for negligence, or its intentional sibling, the tort of breach of fiduciary duty.[2]  This is because most attorney/client relationships involve a fee or retainer agreement, and in such cases where an attorney has negligently performed, or has purposefully undermined their own client, there is always a component of “tort or contract” in any potential claim against an attorney.

Superficially, the codification of the attorney’s liability suggests that in the Commonwealth, the neglect of duty (and therefore the breach of the fee agreement), is viewed as negligence.  However, the reality is not so neatly defined.  Rather, the Commonwealth also adheres to a common law doctrine known as the “source of duty rule.”  This doctrine was established to prevent the “turning of every breach of contract into a tort.”[3]  Rather, “in order to recover in tort, the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract.”[4]

This, by no means establishes that a duty that arises out of contract can never be viewed as a tort as well.  It just requires that the duty not arise solely out of the contract.  Therefore, there must be a common law, or statutory, basis for the duty that happens to be the subject of the contract.[5]  An example of this circumstance is when a contracting party takes a specific action that violates a statute or similar duty.  This can be illustrated most simply by analogy to the Virginia Consumer Protection Act.  In Kaltman v. All American Pest Control, Inc.,[6] the Virginia Supreme Court had occasion to consider whether the defendant’s actions were both a breach of contract and a tort.  The action was based on injuries sustained by a family following the application of pesticides in the home by the defendant.  The defendant claimed that although it had applied commercial (as opposed to residential) pesticides known to have dangerous concentrations of a particular “toxic ingredient,” it was not liable for damages in negligence and pursuant to the Virginia Consumer Protection Act, because the contractor had only breached a duty to use a proper pesticide in the home.[7]  The Court disagreed, finding instead that although the parties were involved in a contractual relationship to apply the pesticide, the issue was not merely that the contractor had failed to apply the correct pesticide, but that the contractor had affirmatively used a dangerous pesticide.[8]  This decision applied what is known as the nonfeasance/misfeasance analysis to determine whether, by its positive act, the contractor “assumed the obligation” that gave rise to the tort liability.[9]

Viewing the attorney/client relationship through this lens, it is possible to allege an “independent willful tort,” such as fraud, if the conduct of the attorney is of a type that would ordinarily be considered tortious, and the duty that the lawyer owes to the client arises in a manner not solely attributable to the fee agreement.[10]  However, as the balancing act performed by the Supreme Court in Kaltman and subsequent cases suggests, this analysis is a complex one that hinges on the unique facts of a given case.  Therefore, in order to determine whether your particular circumstances can support a tort claim as well as a claim for breach of contract in an attorney malpractice case, it is necessary to review all of the circumstances with experienced counsel who can guide you through the process.

Additionally, it is important to note that tort claims do not have the same limitations period as breach of contract claims.  An individual claim of “attorney malpractice” has been construed by the courts to generally arise out of the agreement to perform services for the client.  Consequently, for purpose of a limitations analysis, the claim is a contract claim and governed by the limitations period for contracts.[11]  This time frame is 3 years for an oral contract and 5 years for a written contract.[12]  The period of limitations for statutory claims and tort claims differ, and some may be as short as two years from the injury, so it is important to consult with an attorney as quickly as possible if you believe that you have been injured by attorney malpractice.

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[1]  Va. Code, § 54.1-3906.

[2]  The Second Edition of Black’s Law Dictionary defines “Fiduciary Duty” as a circumstance when “one party must act for another.  They are entrusted with the care of property or funds.”  The Law Dictionary available at:  https://thelawdictionary.org/fiduciary-duty/ (last accessed July 29, 2022).  This somewhat milquetoast definition alludes to the traditional notion that a person who has undertaken a fiduciary duty, has voluntarily agreed to put the interests of the other party ahead of their own interests as it relates to the subject of the duty.

[3] MCR Fed., LLC v. JB&A, Inc., 808 S.E.2d 186, 193 (Va. 2017).

[4] Dunn Contstr. Co. v. Cloney, 682 S.E.2d 943, 946 (Va. 2009).

[5]  Tingler v. Graystone Homes, Inc., 834 S.E.2d 244, 255 (Va. 2019).

[6]  706 S.E.2d 864 (Va. 2011).

[7] Id. at 868.

[8] Id.

[9]   See Tingler, 834 S.E.2d at 257 (discussing the nonfeasance/misfeasance doctrine in connection with the Kaltman case).

[10]  Goodstein v. Weinberg, 245 S.E.2d 140, 142 (Va. 1978).

[11]  Oleyar v. Kerr, 225 S.E.2d 398, 400 (Va. 1976).

[12]  Virginia Code, § 8.01-246.