UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LUCIA MAE FRANCISCO,

Plaintiff-Appellant,

v.

No. 98-1743

DOHERTY, SHERIDAN & GRIMALDI,

L.L.P.; WILLIAM J. VIRGULAK, JR.;

EDWIN A. SHERIDAN,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-97-1858-A)

Submitted: January 29, 1999

Decided: April 21, 1999

Before WILKINS and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Mark A. Epstein, MARK A. EPSTEIN LAW OFFICES, Baltimore,

Maryland, for Appellant. John O. Easton, Carol T. Stone, JORDON

COYNE & SAVITS, L.L.P., Fairfax, Virginia, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lucia Mae Francisco appeals the district court's order granting

Defendants' motion to dismiss this action for legal malpractice in

connection with their handling of her personal injury claim. Francisco

contends that the district court erred in declining to grant her leave to

amend her complaint and in dismissing her malpractice claims for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). We affirm in

part, vacate in part and remand to the district court for further proceedings.

We review Fed. R. Civ. P. 12(b)(6) dismissals de novo, accept as

true factual allegations of the complaint, and view the complaint in

the light most favorable to Francisco. See Mylan Labs, Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Such motions to dismiss

should not be granted unless it appears certain that the plaintiff can

prove no set of facts that would support her claim and entitle her to

relief. See id. Leave to amend complaints"shall be freely given when

justice so requires." Fed. R. Civ. P. 15(a); see Foman v. Davis, 371

U.S. 178, 182 (1962). In denying leave to amend, the district court

found that the proposed amended complaint added nothing to the

original and thus apparently found the proposed amendments futile.

Because the proposed amended complaint added significant detail to

Francisco's allegations, including assertions that she was incompetent

to settle her personal injury claim, Defendants' alleged awareness of

this incompetence, and their failure to seek a guardian on her behalf,

we conclude the district court abused its discretion in denying leave

to amend the complaint.

We also find that Francisco's complaint, as amended, sufficiently

states a claim to survive a 12(b)(6) motion to dismiss. To establish a

prima facie case of legal malpractice in Virginia, a plaintiff must

assert: (1) an attorney-client relationship giving rise to a duty or

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duties; (2) the neglect or breach of a duty or duties; and (3) that such

negligence or breach was a proximate cause of loss to the plaintiff.

See Hendrix v. Daugherty, 457 S.E. 2d 71, 74 (Va. 1995). Francisco's

amended complaint adequately alleges and supports all elements of a

legal malpractice claim. Contrary to the district court's conclusion,

we find the amended complaint sufficiently alleges breach of duties

that proximately caused her loss. Francisco clearly alleges that Defendants advised her to sign an agreement that transferred settlement

authority to her parents who, she claims, improperly sought proceeds

for themselves. Francisco alleges she was mentally incompetent due

to her injuries and that her attorneys failed to obtain a guardian to act

on her behalf despite their awareness of her impairment. She claims

the attorneys improperly consulted with her parents about her case to

her detriment because her parents ultimately received a substantial

amount of the settlement.

We therefore find denial of leave to amend the complaint an abuse

of discretion and conclude that the amended complaint states a claim

sufficient to withstand a motion to dismiss under Fed. R. Civ. P.

12(b)(6). Accordingly, while we express no opinion as to the merits

of Francisco's action, we vacate the district court's order denying

leave to amend and dismissing the legal malpractice claims and

remand those claims for further proceedings. We affirm the district

court's dismissal of the claims for emotional distress and punitive

damages. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

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