Richard McNemar v. Thomas G. Dyer and Dyer Law Offices

Summary

The West Virginia Supreme Court of Appeals affirmed the denial of Richard McNemar’s motion to alter or amend an order denying Rule 60(b) relief in his legal malpractice action against his former criminal defense attorneys. The Court held that, regardless of whether the attorneys were immune under the Public Defender Services Act, McNemar’s malpractice action was barred because his criminal conviction remained undisturbed. The Court issued the decision as a memorandum decision under Rule 21.

Holdings

1. The circuit court did not abuse its discretion in denying McNemar's Rule 59(e) motion to alter or amend the denial of his Rule 60(b) motion.
2. A convict may not bring a legal-malpractice action against former criminal defense attorneys as long as the determination of guilt remains undisturbed.
3. The court did not need to decide whether attorneys initially paid from a private source were protected by the Public Defender Services Act because the complaint was independently barred for failure to state a viable cause of action.

Questions Presented

1. Whether the circuit court abused its discretion in denying McNemar's Rule 59(e) motion to alter or amend the denial of his Rule 60(b) motion.
2. Whether McNemar's legal-malpractice action against his former criminal defense attorneys was barred while his criminal conviction remained undisturbed.
3. Whether the court needed to decide whether attorneys initially paid by a private retainer were immune under the Public Defender Services Act.

Disposition

affirmed