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W.VA: State Appointed Counsel, State Funded Legal Malpractice Defense

Powell v Wood County Com’n, 209 W Va 639, 550 SE2d 617 (2001) 

Underlying: W VA – family law

Student Contributor: Tolu Akinsanya

Facts:   James M. Powell of the Powell law offices was appointed by the circuit court of Wood County to represent Luly Bell Parkins in a dispute over parental rights. Ms. Parkins, unhappy with the result multiple parties,  including state appointed counsel, The Powell Law Firm, in federal court, seeking monetary damages.  Powell  sought  to have the State  pay for the defense of the Parkins malpractice claim. The Parkins federal lawsuit was eventually dismissed after the Powell law office had incurred $5,839.35 in costs and attorney fees. The Powell law office sought a writ of mandamus from the circuit court to pay for the attorney fees incurred. The circuit court denied the writ and dismissed the case. This appeal followed.

Issue:   Does an attorney appointed by the state have a right to be indemnified for the cost of defending a legal malpractice claim that arises from the  state’s appointment?

Ruling:   Yes, the state must indemnify the private attorney that is appointed pursuant to West Virginia code § 29-2-1 et seq to represent an indigent party, because the statute explicitly requires that such appointed counsel should be “immune from liability arising from that representation in the same manner and to the same extent that prosecuting attorneys are immune from liability”

Lesson:   The fear of liability should not discourage zealous advocacy by state appointed counsel and courts will attempt to provide to them the same immunity as prosecutors. 

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Posted in: West Virginia