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W.VA: The Fine Art of Shifting the Blame for Legal Malpractice

Sheetz, Inc. v Bowles Rice McDavid Graff & Love, PLLC, 209 W Va 318, 547 SE2d 256 (2001)

Underlying Case: W VA – employment law

Student Contributor: Tolu Akinsanya

Facts: Sheetz, a Pennsylvania company, hired attorneys, Bowles Rice McDavid Graff & Love, to represent them in the underlying state employment law case. The worker in that case had been fired by Sheetz and allegedly retaliated against, in violation of West Virginia employment and human rights law. The jury in that case found for the worker, and granted her $130, 066.00 in compensatory damages, $170, 000 in emotional distress damages, and about 2.7 million dollars in punitive damages. Sheetz appealed and lost in the employment law case, the damages were upheld. Sheetz then sued its attorney, Bowles, for legal malpractice in the federal district court under diversity jurisdiction. Bowles sought to implead Sheetz’ previous Pennsylvania lawyer that drafted the employment manual and policies under which Sheetz fired the West Virginia employer. The federal district court certified 4 questions to West Virginia highest court.

(1) is the advice of counsel a defense to punitive damages, (2) may a tortfeasor implead a third party lawyer in a legal malpractice case, (3) is expert testimony permitted in a malpractice case, and (4) is a plaintiff’s testimony sufficient to sustain a claim of emotional distress and punitive damages?

(1) The advice of counsel may sometimes be a defense or mitigating factor, but it is not a absolute  defense since it presents a question for the finder of fact to decide, (2) a previous lawyer may be impleaded  because a party should be accountable for his or her negligence, (3) expert testimony is permissible  where such testimony would help the jury, (4) double recovery concerns from tort and reckless infliction of emotional distress are not applicable in employment law case.

The  attorney who drafted an employment manual for a corporate client may be impleaded by a trial attorney who is sued for malpractice by the corporate client  for  those errors made in drafting or for reliance by a joint client on erroneous advice in the manual. Experts should be used in legal malpractice cases to clarify issues for the jury. 

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Posted in: West Virginia