Present: All the Justices

JUDY GAYLE DESETTI
                                            OPINION BY
v.   Record No. 141239             JUSTICE LEROY F. MILLETTE, JR.
                                           June 4, 2015
FRANCIS CHESTER, ET AL.


              FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                    A. Joseph Canada, Jr., Judge

      In this appeal we determine whether a plaintiff

sufficiently pled a claim for legal malpractice that occurred

during the course of an attorney's representation of the

plaintiff in a criminal matter.

                     I.   FACTS AND PROCEEDINGS

      This appeal comes to us upon the circuit court sustaining

a demurrer.   "For purposes of evaluating a demurrer, a court

assumes that all material facts, implied facts[,] and

reasonable inferences from those facts that are properly

alleged in the complaint are true."   Brown v. Jacobs, ___ Va.

___, ___ n.2, 768 S.E.2d 421, 423 n.2 (2015).     Accordingly, the

relevant facts alleged in the complaint are as follows.

      Judy Desetti, her husband Joel Desetti, and her son Ryan

Desetti were involved in a criminal incident with a law

enforcement officer at the Desetti home.   Arising from that

incident, Judy was charged with felony assault and battery of a

law enforcement officer in violation of Code § 18.2-57, and

misdemeanor obstruction of justice in violation of Code § 18.2-
460.   Also arising from that incident, Joel and Ryan were

charged with misdemeanor obstruction of justice in violation of

Code § 18.2-460.

       Judy employed Francis Chester of the firm Chester-Cestari

Law, P.C., to represent her in this criminal matter.   Chester

was also retained by Joel and Ryan to represent them in their

own criminal proceedings.

       Joel's and Ryan's charges of misdemeanor obstruction of

justice went to trial first.   Chester called Judy as a witness.

During the course of her direct examination, Judy admitted that

she struck the law enforcement officer who had entered the

Desetti home.    At the conclusion of trial, both Joel and Ryan

were found guilty.

       Subsequent to that trial, the Commonwealth conveyed to

Chester a plea offer on Judy's charges.   The offer allowed Judy

to plead guilty to a misdemeanor assault and battery, rather

than to the felony assault and battery that she had been

charged with.    Chester never conveyed this plea offer to Judy

or responded to the Commonwealth.    Instead, Chester advised

Judy that she should plead not guilty and go to a jury trial

because "she had a 'slam dunk' case."   Chester also failed to

inform Judy that a guilty verdict on her felony charge would

entail a mandatory minimum sentence of six months of

incarceration.


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     Based on Chester's advice, Judy pled not guilty and

requested a jury trial.   Judy asserts that various aspects of

Chester's representation during the trial constituted legal

malpractice.   Among these allegations of malpractice is

Chester's unilateral decision, without consulting with Judy, to

reject the Commonwealth's jury instruction that incorporated

the lesser-included offense of misdemeanor assault and battery

because Chester was employing a "felony or freedom" strategy.

At the conclusion of that trial, the jury returned a guilty

verdict on the felony assault and battery charge, and Judy was

sentenced to the mandatory minimum of six months of

incarceration.   Judy unsuccessfully exhausted her direct

appeals.

     One month into her sentence, Judy filed a petition for

writ of habeas corpus alleging that Chester's representation

was so deficient and prejudicial that it deprived her of her

constitutional right to effective assistance of counsel.    One

year later, the habeas court granted Judy's habeas petition on

the basis that Chester's ineffective assistance of counsel

prejudiced Judy in the criminal matter.   The habeas court held

that Chester's representation was constitutionally deficient

because of (1) Chester's concurrent representation of Judy,

Joel, and Ryan, (2) Chester's failure to convey and explain the

Commonwealth's plea offer, and (3) Chester's failure to advise


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and consult with Judy regarding the inclusion of a lesser-

included misdemeanor offense in the jury instructions.

     The habeas court vacated Judy's felony assault and battery

conviction.   The Commonwealth elected to retry Judy for her

actions giving rise to her original charges.   During the course

of this second criminal matter, Judy pled guilty to misdemeanor

assault and battery.   Pursuant to this plea, Judy was convicted

of misdemeanor assault and battery and was sentenced to ten

days of incarceration, with all ten days suspended.

     Judy subsequently filed a legal malpractice claim against

Chester and the firm Chester-Cestari Law.   This legal

malpractice claim alleged multiple bases of Chester's

malpractice for actions during the original criminal matter.

     Chester and Chester-Cestari Law filed a demurrer to Judy's

complaint.    The demurrer asserted that Judy failed to state a

claim upon which relief could be granted because she was not

actually innocent of the criminal act of assault that gave rise

to the criminal matter in which the alleged legal malpractice

occurred.    That is, although Judy's felony assault and battery

conviction had been vacated, Judy subsequently admitted guilt

to misdemeanor assault and battery, and it was that guilt of a

criminal act, rather than a guilty verdict for any given crime,

which proximately caused injuries Judy suffered from the

original criminal matter.


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     The circuit court agreed with Chester and the firm

Chester-Cestari Law, and sustained the demurrer without leave

to amend.   Judy timely appealed to this Court.

                          II.   DISCUSSION

     Although we granted three assignments of error, we need

only address the first assignment because our resolution of the

issue of proximate causation resolves this appeal. 1   Jimenez v.

Corr, 288 Va. 395, 404, 764 S.E.2d 115, 118 (2014).

Assignment of error 1 reads:

     1.   The trial court erred in sustaining Defendants'
     Demurrer because it thereby decided, as a matter of
     law, that [Judy] could not prove that Chester's
     negligence was the proximate cause of [Judy]'s harm
     when the trial court had already established by prior
     order granting [Judy]'s Petition for Writ of Habeas
     Corpus that it was reasonably probable that Chester's
     ineffective assistance of counsel caused [Judy] Harm.

A.   Standard Of Review

     "A trial court's decision sustaining a demurrer presents a

question of law which we review de novo."    Harris v. Kreutzer,

271 Va. 188, 195, 624 S.E.2d 24, 28 (2006).   "A demurrer

accepts as true all facts properly pled, as well as reasonable

inferences from those facts."    Steward v. Holland Family

Props., LLC, 284 Va. 282, 286, 726 S.E.2d 251, 253 (2012).

     1
       Assignment of error 2 pertains to whether Judy's guilty
plea to the misdemeanor charge was equivalent to being
convicted of the felony charge.
     Assignment of error 3 pertains to whether Judy was
required to plead actual innocence of all criminal culpability
to state a legal malpractice cause of action.

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B.   The Elements Of A Legal Malpractice Claim

     "A cause of action for legal malpractice requires the

existence of an attorney-client relationship which gave rise to

a duty, breach of that duty by the defendant attorney, and that

the [pecuniary] damages claimed by the plaintiff client must

have been proximately caused by the defendant attorney's

breach."    Shevlin Smith v. McLaughlin, ___ Va. ___, ___, 769

S.E.2d 7, 9 (2015) (internal quotation marks and citation

omitted).   This is all that must be pled by a legal malpractice

plaintiff who alleges that malpractice occurred during the

course of a civil matter.

     However, a legal malpractice plaintiff who alleges that

malpractice occurred during the course of a criminal matter has

additional burdens of pleading.       These additional burdens are

to ensure that "courts [do] not assist the participant in an

illegal act who seeks to profit from the act's commission."

Zysk v. Zysk, 239 Va. 32, 34, 404 S.E.2d 721, 722 (1990).       That

is, it is the policy throughout the Commonwealth that a

criminal defendant may not profit from a crime in a subsequent

legal malpractice action.    See Taylor v. Davis, 265 Va. 187,

191, 576 S.E.2d 445, 447 (2003); Adkins v. Dixon, 253 Va. 275,

281-82, 482 S.E.2d 797, 801-02 (1997).

     Consequently, "actual guilt is a material consideration

[because] courts will not permit a guilty party to profit from


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his own crime."   Adkins, 253 Va. at 282, 482 S.E.2d at 802.

Relevant to this appeal, we have held that this "material

consideration" requires a legal malpractice plaintiff, who

alleges that malpractice occurred during the course of a

criminal matter, to plead that the damages to be recovered were

proximately caused by the attorney's negligence and were not

proximately caused by the legal malpractice plaintiff's own

criminal actions.   Id. (holding that it is proper to sustain a

demurrer if the legal malpractice plaintiff fails to satisfy

this "material consideration").       Consequently, a legal

malpractice plaintiff who alleges that malpractice occurred

during the course of a criminal matter must plead facts

establishing this element of the cause of action:       that the

damages to be recovered were proximately caused by the

attorney's negligence but were not proximately caused by the

legal malpractice plaintiff's own criminal actions.       W.S.

Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 384, 478

S.E.2d 295, 300 (1996) ("A demurrer will be sustained if the

pleading, considered in the light most favorable to the

plaintiff, fails to state a valid cause of action.").

C.   Judy's Legal Malpractice Complaint

     Judy pled that she employed Chester of the firm Chester-

Cestari Law for purposes of representing Judy in a criminal

matter, and that this employment created an attorney-client


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relationship.   Judy pled that Chester breached his duties

arising out of that attorney-client contractual relationship.

And Judy pled that Chester's breach proximately caused certain

pecuniary loss. 2   Had the alleged malpractice occurred in a

civil matter, this would be sufficient for Judy's complaint to

survive demurrer.    However, Judy's pleading failed to satisfy

the additional burden that a legal malpractice plaintiff's

damages cannot be proximately caused by the plaintiff's

criminal actions.

     The crux of Judy's argument is that her criminal conduct,

in the absence of legal malpractice, would have resulted in a

misdemeanor conviction with a ten-day incarceration sentence –

which is what Judy was actually convicted of and sentenced to

in the second criminal proceeding.    Judy concedes, as she must,

that any injury flowing from a misdemeanor conviction and a

ten-day incarceration sentence for her assault on the law

enforcement officer was therefore proximately caused by her

criminal actions, and damages therefor are not recoverable in a


     2
       In her complaint, Judy pled both pecuniary and non-
pecuniary damages. However, Judy's complaint was filed before
we issued our opinion in Shevlin Smith v. McLaughlin, ___ Va.
___, 769 S.E.2d 7 (2015). In that case, we clarified that "[a]
legal malpractice plaintiff may recover only pecuniary damages
proximately caused by an attorney's breach of the contractually
implied duties" arising from the "attorney-client contract" of
representation. Id. at ___, ___, 769 S.E.2d at 15, 20. At
oral argument, Judy's counsel conceded that Judy could recover
only those pecuniary damages identified in the complaint.

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legal malpractice action.   But Judy contends that any damages

proximately caused by her felony conviction and her six month

incarceration sentence were not proximately caused by her

criminal actions, and instead these damages were proximately

caused by Chester's malpractice.    According to Judy, absent

Chester's malpractice, she would not have been convicted of a

felony and would not have served a six month sentence, which

led to her pecuniary damages.

     Judy's pleadings fail to support her arguments.     That is,

Judy failed to adequately plead that her attorney's legal

malpractice, as opposed to her own commission of a criminal

act, proximately caused the pecuniary damages alleged in her

complaint.

1.   Wrongful Severity Of Conviction: Legal Malpractice
     Proximately Causing The Felony Conviction

     The first aspect of Judy's original conviction that she

alleges was proximately caused by Chester's legal malpractice

is the fact that Judy was convicted of a felony, rather than of

a misdemeanor.   Judy's pleading adequately alleges that she

would have been convicted of a misdemeanor, in the absence of

Chester's legal malpractice, because she would have accepted

the original misdemeanor plea offer.   But this only satisfies

half of Judy's burden.   To adequately plead proximate

causation, Judy must plead that the damages she seeks to



                                9
recover were proximately caused by legal malpractice and not by

her own criminal conduct.   Adkins, 253 Va. at 282, 482 S.E.2d

at 802; W.S. Carnes, 252 Va. at 384, 478 S.E.2d at 300.      In the

context of this allegation and Judy's theory of the case, Judy

must plead that the damages she seeks to recover were caused by

her felony conviction, which was entered only because of legal

malpractice, and would not have been caused by her misdemeanor

conviction, which was properly entered as punishment for her

criminal actions.

     The only relevant pecuniary damage, as pled in the

complaint, was that Judy's "nursing license was suspended . . .

as a direct result of her felony conviction."   This allegation

can reasonably be understood to relate to the general averments

in her complaint that she has "been prevented from working and

will be so prevented in the future," and having "suffered lost

wages[ and] damages related to her job and career."   However,

there is no allegation stating that, but for the felony

conviction entered pursuant to Chester's negligence, Judy would

not have lost her nursing license and suffered the

corresponding pecuniary harm.   Alternatively stated, Judy

failed to plead that she would not have lost her nursing

license based upon her conviction of misdemeanor assault and

battery.   And there is no reasonable basis, from the facts

pled, to infer that Judy would have kept her nursing license if


                                10
she had been convicted of a misdemeanor.   Therefore, Judy

failed to plead damages flowing from her felony conviction that

would not have been proximately caused by her misdemeanor

conviction.

2.   Wrongful Duration Of Sentence: Legal Malpractice
     Proximately Causing The Six Months Incarceration

     The second aspect of Judy's original conviction that she

alleges was proximately caused by legal malpractice is that she

was sentenced to six months of incarceration, rather than to

the later sentence of ten days of incarceration with all ten

days suspended.   As an initial matter, Judy failed to

specifically allege that she would have been sentenced to any

particular length of incarceration absent Chester's

malpractice.   Instead, Judy's complaint quotes the habeas

court's determination that "there is a reasonabl[e] probability

that but for [Chester's] deficient performance, the results of

the [original criminal] proceeding would have been less severe

than the judgment and sentence imposed."   By incorporating the

habeas court's determination as to prejudice affecting

sentencing, Judy's pleading adequately alleges that she would

have been sentenced to less than six months of incarceration.

See McCord v. Bailey, 636 F.2d 606, 609 (D.C. Cir. 1980)

("[T]he legal standards for ineffective assistance of counsel

in [the criminal defendant/legal malpractice plaintiff's]



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criminal proceedings and for legal malpractice in this action

are equivalent."); Shaw v. Department of Admin., Pub. Defender

Agency, 816 P.2d 1358, 1361 n.4 (Ala. 1991) ("The burden of

proof in the two proceedings[, an ineffective assistance

proceeding and a legal malpractice proceeding,] is similar.");

Glaze v. Larsen, 83 P.3d 26, 31 (Ariz. 2004) ("Although the

standard of proof imposed under Strickland arguably does not

correspond precisely to the burden placed on a plaintiff in a

legal malpractice action, the inquiry in each case is at the

very least so similar that post-conviction proceedings often

will provide definitive guidance as to whether any alleged

legal malpractice actually occurred and/or was the cause of the

defendant's conviction."); Barner v. Leeds, 13 P.3d 704, 712

(Cal. 2000) ("The same standard of care governing claims of

ineffective assistance of counsel applies in a civil legal

malpractice action."); Rantz v. Kaufman, 109 P.3d 132, 139

(Colo. 2005) ("[T]he standard for demonstrating prejudice in an

ineffective assistance of counsel claim and the standard for

establishing causation in a malpractice claim involve

equivalent analyses."); Sanders v. Malik, 711 A.2d 32, 34 (Del.

1998) ("The standards for proving ineffective assistance of

counsel in a criminal proceeding are equivalent to the

standards for proving legal malpractice in a civil

proceeding."); Zeidwig v. Ward, 548 So. 2d 209, 214 (Fla. 1989)


                               12
(concluding that "the standards for determining ineffective

assistance of counsel in malpractice [are] essentially the

same"); Glenn v. Aiken, 569 N.E.2d 783, 785 (Mass. 1991) ("[A]n

appellate court's ruling that counsel was not ineffective may

well justify precluding a criminal defendant from maintaining a

malpractice action against his trial counsel.").

     However, this again only satisfies half of Judy's burden.

The result of the habeas corpus proceeding does not answer the

issue before us.   A habeas court's determination on the

ineffectiveness of a criminal defendant's counsel and

subsequent prejudice to that defendant establishes that

constitutionally deficient performance proximately caused the

outcome in the original criminal proceeding.   See Strickland v.

Washington, 466 U.S. 668, 686 (1984).   However, we must also

look to the damages flowing from the outcome of the criminal

matter.   We must determine whether the pleadings properly

allege that any of those damages were proximately caused by

legal malpractice, rather than by the legal malpractice

plaintiff's own criminal actions.    Adkins, 253 Va. at 282, 482

S.E.2d at 802; W.S. Carnes, 252 Va. at 384, 478 S.E.2d at 300.

     Judy's complaint, as pled, fails to identify any pecuniary

damages that were specifically caused by her six months of

incarceration, and not by a sentence imposed absent Chester's

malpractice – that is, and not by a sentence imposed because of


                                13
Judy's own criminal actions.   And such damages cannot be

reasonably inferred because there is no basis to determine what

sentence a circuit court would have imposed in the original

criminal proceeding had Chester not been negligent.

     This inability to determine such a sentence arises from

the fact that a defendant convicted of misdemeanor assault and

battery under Code § 18.2-57 is subject to a sentence of not

more than twelve months of incarceration and a fine of $2,500,

either or both.   Code §§ 18.2-11(a); 18.2-57(A).   Although Judy

was eventually sentenced to only ten days, with all ten days

suspended, that sentence and suspension occurred after she had

already served her original six month sentence.     According to

Judy's complaint, the original misdemeanor plea offer was not

accompanied by a sentence recommended by the Commonwealth.

Even if such a recommendation had been made, there are no facts

pled from which to draw the inference that, absent the legal

malpractice, the circuit court would have imposed any shorter

sentence than the six months that was imposed.

     A reviewing court has no basis to infer a particular

sentence that the circuit court would have imposed had Judy

been convicted of a misdemeanor, much less a sentence less than

the six months of incarceration Judy endured pursuant to

Chester's malpractice.   We cannot reasonably infer, based upon

the bare allegation that the circuit court imposed a ten day


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suspended sentence after Judy had already been incarcerated for

six months for the now-vacated felony, what compensable injury,

if any, was caused by the sentence imposed in the first

proceeding which was subject to the legal malpractice and not

by Judy's own criminal actions.

                         III. CONCLUSION

     Judy is a legal malpractice plaintiff who alleged that

malpractice occurred during the course of a criminal

proceeding.   However, Judy failed to satisfy her burden of

pleading that the pecuniary injury she seeks to recover was

proximately caused by her attorney's legal malpractice, rather

than being proximately caused by her criminal actions.    We

therefore will affirm the circuit court's judgment sustaining

the demurrer.

                                                          Affirmed.




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