Adkins v. Dixon

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Whiting, Senior Justice

JEFFREY S. ADKINS
OPINION BY SENIOR JUSTICE HENRY H. WHITING
v. Record No. 960327 February 28, 1997

THOMAS W. DIXON, JR., ET AL.

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Duncan M. Byrd, Jr., Judge

In separate attorney malpractice cases, Jeffrey Scott

Adkins, a convicted felon, seeks damages from Thomas W. Dixon,

Jr., his former defense counsel, and from Dixon's employer. By

agreement of the parties, the trial court consolidated both cases

"for all purposes."
Adkins's actions are based on multiple claims arising from

Dixon's alleged negligence and breach of contract in failing to

properly defend the felony charges that resulted in Adkins's

convictions. The dispositive issues are (1) whether a court-

appointed attorney and his employers are entitled to governmental

immunity in these actions and, if not, (2) whether the actions

can be maintained without allegations that Adkins was innocent

and that Adkins's convictions were set aside in post-trial

proceedings.

The consolidated cases were decided on the defendants'

demurrers and special pleas. Therefore, we state as true the

facts alleged in the motions for judgment and all reasonable

inferences to be drawn therefrom. Covington v. Skillcorp
Publishers, 247 Va. 69, 70, 439 S.E.2d 391, 391 (1994). 1

1
We have not considered any of the facts set forth in the
 Adkins, an indigent, was arrested, incarcerated, and charged

with ten felonies "all stemming from a single criminal episode"

that occurred in Augusta County. 2 Thomas W. Dixon, Jr., an

employee of the law firm of Richard F. McPherson, Frank L.

Summers, Jr., Victor M. Santos, and Thomas P. McPherson, partners

trading as Nelson, McPherson, Summers and Santos, was appointed

by the court to represent Adkins.

At a preliminary hearing on December 7, 1989, the General

District Court of Augusta County found sufficient cause to

certify the ten charges to the circuit court for consideration.

On January 22, 1990, the grand jury of Augusta County returned

indictments against Adkins on the ten original charges and on six

additional felony charges arising from the same episode. No

preliminary hearings had been held on these six charges.
The circuit court fixed the trial dates as May 31, 1990 for
(..continued)

plaintiff's admissions in response to the defendants' requests

for admission since the parties have not stipulated their use in

deciding the demurrers. Elder v. Holland, 208 Va. 15, 18, 155

S.E.2d 369, 372 (1967); see Flippo v. F & L Land Co., 241 Va. 15,

17, 400 S.E.2d 156, 156-57 (1991).

2
The motions for judgment do not state the nature of the

crimes charged. Adkins's appellate brief states that they were

the armed robberies and abductions of four persons, the unlawful

wearing of a mask, and sexual offenses.

-2-
the six additional charges and June 15, 1990 for the ten original

charges. Adkins, who had been incarcerated on the ten charges

since his initial arrest, filed a pro se motion on May 23, 1990

to dismiss all 16 charges based upon asserted violations of the

speedy trial provisions of Code § 19.2-243, which provides in

pertinent part:
Where a general district court has found that
there is probable cause to believe that the accused has
committed a felony, the accused, if he is held
continuously in custody thereafter, shall be forever
discharged from prosecution for such offense if no
trial is commenced in the circuit court within five
months from such date such probable cause was found by
the district court.

Adkins claimed that his speedy trial rights would be

violated by trials on May 31 and June 15, which were more than

five months after his preliminary hearing. Although the six

additional charges had not been considered in the preliminary

hearing, Adkins contended that all sixteen charges were subject

to the same five-month speedy trial limitation since they arose

"from a single criminal episode." The court overruled Adkins's

motion.

At jury trials commencing on the previously fixed trial

dates, Adkins was found guilty of all charges and the court

entered judgments on those verdicts. The jury's verdicts on the

six charges recommended punishments of two life sentences plus 45

years. 3

3
The record does not disclose the punishments recommended or

-3-
 Adkins's appeal to the Court of Appeals filed by Dixon

asserted the speedy trial defense only as to the convictions

arising from the ten original charges. The Court of Appeals

reversed the judgments of convictions on that ground and

discharged Adkins from further prosecution on those ten charges.

Adkins v. Commonwealth, 13 Va. App. 519, 523, 414 S.E.2d 188,

190 (1992). Dixon's appeal to this Court raised the speedy trial

defense to the six additional charges for the first time and was

denied for that reason.
Thereafter, Adkins filed an action pro se against Dixon,

claiming that Dixon was guilty of attorney malpractice in failing

to raise the speedy trial issue as to the six additional charges

in the Court of Appeals. Dixon filed a pro se demurrer and plea

of the statute of limitations in defense of this action.

Almost a year later, Adkins employed counsel and sued

Dixon's employers, alleging vicarious liability for Dixon's acts.

Dixon's employers retained counsel for themselves and Dixon.

Defendants' counsel sought leave to amend and supplement Dixon's
pro se pleadings by asserting a special plea of governmental

immunity arising from Dixon's representation of Adkins as court-

appointed counsel, and by setting forth that:
"[Adkins] has not alleged, as he must, that (a) he is
innocent of the charges that resulted in his
conviction; and (b) he has secured reversal of his
conviction in post-trial proceedings."

(..continued)

imposed for the ten felony convictions.

-4-
 After permitting the amendments, the court sustained the

special plea and ground (b) of the demurrer and overruled ground

(a) of the demurrer. Adkins appeals the rulings adverse to him

and the defendants assign cross-error to the ruling adverse to

them. 4

First, we consider whether the court abused its discretion

in permitting Dixon to amend his pleadings. Adkins's present

counsel properly admits in his brief that the decision to permit

amendments of pleadings rests in the sound discretion of the

trial court and will not be disturbed absent a showing of abuse

of discretion. Brown v. Brown, 244 Va. 319, 324, 422 S.E.2d 375,

378 (1992).

Noting that Dixon had failed to raise either ground at issue

in his initial pleadings, Adkins claims such failure was a waiver

of those grounds. Adkins concludes that permitting the

amendments more than a year after the case had been filed was an

abuse of the trial court's discretion.

In response, the defendants assert: both Dixon and Adkins

were pro se litigants during the first 11 months of Adkins's
action against Dixon; when Adkins retained counsel and sued

Dixon's employers, the employers retained counsel to represent

4
Adkins asserts a number of other errors in his appeal which

are not material to the issues involved here. Accordingly, they

are not considered in this appeal.

-5-
both Dixon and themselves; promptly thereafter, the defendants

sought the amendment in question, mirroring the same defense as

that asserted by the employers; the proposed amendments were not

sought just before trial; and Adkins could show no actual

prejudice as a result of the amendments. The defendants conclude

that Adkins failed to show that the court abused its discretion.

Rule 1:8 provides in pertinent part that "[l]eave to amend

[pleadings] shall be liberally granted in furtherance of the ends

of justice." This language is from a predecessor rule which we

quoted in Herndon v. Wickham, 198 Va. 824, 826, 97 S.E.2d 5, 7

(1957). In Herndon, we sustained a trial court's exercise of

discretion in permitting a plea of the statute of limitations to

be filed more than 11 months after the action was instituted and

eight days before trial. Additionally, we held that the delayed

filing of the plea of the statute of limitations was not a waiver

of its provisions. Id. at 827, 97 S.E.2d at 7.

We perceive no significant difference between the facts in

this case and those in Herndon. Applying the Herndon rationale,

we conclude that Adkins has not shown that the trial court abused

its discretion in permitting the amendment. See also Nelson v.

Commonwealth, 235 Va. 228, 244, 368 S.E.2d 239, 248 (1988)

(amendment thirteen days before trial).

Next, we consider whether the court erred in sustaining the

pleas of governmental immunity, a ruling which, if correct,

renders the remaining issues moot. Adkins contends that court-

-6-
appointed counsel have no such immunity in these actions because,

except for the court's appointment of counsel and payment of

counsel's fees by the state, court-appointed counsel have the

same relationship to their clients as all other counsel. The

defendants respond that court-appointed counsel are engaged in a

governmental objective that meets the criteria for governmental

immunity under the four-part test of James v. Jane, 221 Va. 43,

53, 282 S.E.2d 864, 869 (1980). We disagree with the defendants.
One part of the Jane test relates to "the degree of control

and direction exercised by the state over the employee whose

negligence is involved." Id. "A high level of control weighs

in favor of immunity; a low level of such control weighs against

immunity." Lohr v. Larsen, 246 Va. 81, 88, 431 S.E.2d 642, 646

(1993) (citing Jane, 221 Va. at 53-54, 282 S.E.2d at 869). In

contrast to Lohr, in which the Commonwealth controlled the

medical procedures the state-employed doctor could perform, id.,

the Commonwealth had almost no control over the pleadings and

defense tactics employed by Dixon. Indeed, Dixon had an

adversarial relationship to the Commonwealth in defending Adkins.

Nor do we agree with the defendants' contention that

sufficient control is found in Dixon's "status as an officer of

the Court" and by the "Code of Professional Responsibility, as

administered by the State Bar." The difficulty with this

contention is that the Commonwealth had no more control of the

manner in which Dixon represented Adkins as court-appointed

-7-
counsel than it would have had if Dixon were retained counsel.

Indeed, had Dixon permitted the Commonwealth to control his

defense tactics in any manner beyond that of requiring ethical

conduct, he may well have violated Canon 5 of the Virginia Code

of Professional Responsibility, which requires a lawyer to

"exercise independent professional judgment on behalf of a

client."

For these reasons, we conclude that there is no such

immunity in these cases. Therefore, the court erred in

sustaining the plea of immunity.
This brings us to a consideration of the court's rulings on

the defendants' demurrers. The court sustained ground (b) of the

defendants' demurrers and dismissed the cases. 5 In ground (b)

the defendants claim that Adkins was required to allege that he

had successfully obtained post-conviction relief. 6

Citing Massachusetts and Ohio cases, Adkins claims that most

5
Adkins did not ask for leave to amend his motions for

judgment to allege that he had obtained habeas corpus relief.

6
Although the motions for judgment make no mention of a

habeas corpus proceeding, the trial court's opinion indicates

that Adkins's petition for habeas corpus based on ineffective

assistance of counsel was denied in Adkins v. Murray, 872 F.

Supp. 1491 (W.D. Va. 1994), aff'd sub nom. Adkins v. Attorney
General, 97 F.3d 1446 (4th Cir. 1996).

-8-
jurisdictions do not require attorney malpractice plaintiffs to

demonstrate, as an element of their prima facie case, success in

post-conviction reviews. As defendants note, Adkins is mistaken.

The following cases hold that a decision adverse to a

criminal defendant in post-conviction proceedings bars a recovery

for the defense attorney's malpractice. Shaw v. State, 816 P.2d

1358, 1360 (Alaska 1991); Johnson v. Schmidt, 719 S.W.2d 825, 826

(Mo. App. 1986); State ex rel. O'Blennis v. Adolf, 691 S.W.2d

498, 503-04 (Mo. App. 1985); Morgano v. Smith, 879 P.2d 735, 738-
39 (Nev. 1994); Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y.

1987); Stevens v. Bispham, 851 P.2d 556, 566 (Or. 1993); Peeler

v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995).

We agree with the majority of these foreign jurisdictions.

As we said in Zysk v. Zysk, 239 Va. 32, 34, 404 S.E.2d 721, 722

(1990), "courts will not assist the participant in an illegal act

who seeks to profit from the act's commission." Therefore, we

conclude that a post-conviction ruling adverse to the defendant

will prevent a recovery for legal malpractice.

Also, we think that a plaintiff in a case like the present

should have the burden of alleging and proving as a part of his

cause of action that he has obtained post-conviction relief.
Shaw, 816 P.2d at 1360; Carmel, 511 N.E.2d at 1128; Stevens, 851

P.2d at 566. Therefore, we conclude that the trial court

correctly sustained ground (b) of the defendants' demurrers.

Nor do we agree with Adkins's contention that under our

-9-
rationale the statute of limitations may bar his malpractice

action before the post-conviction proceedings are terminated.

Since successful termination of such a proceeding is a part of

Adkins's cause of action, he has no right of action until that

time and, thus, the statute of limitations does not begin to run

until termination of the post-conviction proceeding. See Locke

v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900, 904

(1981)(cause of action for injury accrues when plaintiff incurs

positive, physical or mental hurt); McKay v. Citizens Rapid
Transit Co., 190 Va. 851, 858, 59 S.E.2d 121, 124 (1950)(in

action for contribution, statute of limitations does not begin to

run until payment made by plaintiff).

Next, we consider the court's action in overruling ground

(a) of the demurrers in which the defendants contend that Adkins

was required to allege his innocence of the six additional

charges. Adkins argued, and the court agreed, that if the speedy

trial defense did apply to the six additional charges, Adkins

could have been discharged from further prosecution on those

charges without a determination of his actual guilt.

We agree with the defendants' claim that Adkins's actual

guilt is a material consideration since courts will not permit a

guilty party to profit from his own crime. Zysk, 239 Va. at 34,

404 S.E.2d at 722. And, contrary to the opinion of the trial

court, we think that Adkins's guilt, not Dixon's alleged failure

to assert the speedy trial defense, was the proximate cause of

-10-
the convictions. Peeler, 909 S.W.2d at 497. Hence, we think

that the court erred in overruling this ground of the demurrers. 7

Since the court correctly sustained ground (b) of the

demurrers, we will affirm the judgment of the court dismissing

the case.

Affirmed.

7
We express no opinion as to what vicarious liability, if

any, employers of court-appointed counsel might have to indigent

clients of such counsel since that issue is not before us.

-11-