Catherine Tyler v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 26, 2022
• Docket: 0993212
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Russell,* Ortiz and Raphael PUBLISHED

Argued at Richmond, Virginia

CATHERINE TYLER OPINION BY v. Record No. 0993-21-2 JUDGE DANIEL E. ORTIZ JULY 26, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Humes J. Franklin, Jr., Judge Designate

Bryan Jones (Bryan J. Jones, LLC, on brief), for appellant.

Sharon M. Carr, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Catherine Tyler pleaded guilty under Code § 18.2-111 to one count of embezzlement

after she stole nearly $650,000 from the law firm where she worked as a bookkeeper for

seventeen years. At her sentencing hearing, the firm requested restitution in an amount $125,000

greater than the amount stolen for expenses related to Tyler’s embezzlement. Tyler objected.

The circuit court awarded the amount Tyler stole and the additional $125,000. Tyler assigns

error to part of the circuit court’s restitution award of the $125,000 because she argues that some

expenses awarded were not directly caused by her crime. We agree with Tyler because some of

the expenses were too attenuated from her crime. As a result, we reverse in part and affirm in

part.

* Justice Russell participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. BACKGROUND

Tyler began working for the law firm Dygert, Wright, Hobbs & Hernandez, PLC in 2003

as a bookkeeper. The firm tasked Tyler with “managing the law firm’s financial and accounting

functions including its trust and operating accounts.” Tyler’s duties also included receiving and

depositing money, “applying client payments to outstanding invoices, accounting for cost

advances and reimbursement, and paying firm bills.” She also later became the firm’s real estate

paralegal and was responsible for “preparing real estate transactions for closings, communicating

with lenders and title insurance companies, making post-closing monetary disbursements, and

performing account reconciliations.”

Beginning sometime in or before 2012, Tyler started embezzling funds from the firm.

The firm did not discover Tyler’s embezzlement until January 2020, despite having independent

professional obligations requiring it to manage and oversee its accounts and employees. By the

time the firm had caught her, Tyler had drained most of the firm’s accounts so that each account

either had a negative balance or about $1,000 to $5,000 left. She also stole a $300,000 check

intended for a real estate client (payoff check). The firm could not determine how much Tyler

stole and realized it needed a forensic accountant. The firm then had to switch forensic

accountants because of the complexity of the embezzlement. After the forensic accountant

reviewed the firm’s records, he determined the firm was missing $648,729.79. The accountant

could track $560,000 of the missing amount through bank records, but the firm only had records

dating back to 2012. The accountant determined that an additional $88,000 was also missing but

could not “tie [it] to a specific transaction.”

At Tyler’s sentencing hearing, the firm requested as restitution the embezzled amount

and certain expenses totaling about $125,000. These expenses included: (1) office expenses

totaling $922.02, which included costs to order new checks for the new accounts the firm

-2- opened, change the office locks, and pay an overdraft fee (office expenses); (2) malpractice and

real estate insurance costs totaling $14,060.50, which related to a tail end coverage fee and one

of the firm’s insurers’ legal fees after the insurer sued the firm (insurance costs); (3) legal fees

totaling $14,622.50 arising from a lawsuit a client brought against the firm, the firm’s lawsuit

against Tyler, and other unspecified legal fees (legal fees); (4) forensic accounting costs totaling

$34,493.75, including costs related to calculating the embezzled amount (forensic accounting

fees); (5) the Virginia State Bar sanction fee and audit costs totaling $11,216.30, resulting from a

VSB complaint which alleged the firm failed to maintain certain records, reconcile its accounts,

and oversee nonlawyer employees (VSB fees); and (6) anticipated future costs totaling $29,075,

which included costs for VSB-required audits every six months and for the forensic accountant’s

testimony (anticipated future costs). Tyler objected to each of these expenses except the forensic

accountant’s testimony costs.

The circuit court sentenced Tyler to twenty years in prison with eight years’ active

incarceration. It also ordered Tyler to pay $499,537.25 in restitution. That restitution amount

included the $648,729 Tyler embezzled and the $125,808.25 in additional expenses minus

$275,000 Tyler had paid back to the firm as part of the parties’ civil settlement. Tyler moved to

reconsider, but the circuit court denied the motion. Tyler appealed.

ANALYSIS

The circuit court abused its discretion by awarding certain costs, but not others, over the

funds embezzled as restitution. Some costs awarded were too attenuated because the

Commonwealth failed to prove the costs were directly related to Tyler’s crime or the firm had

independent duties related to account management and employee supervision.

-3- I. Standard of Review

We review a trial court’s restitution award for abuse of discretion. Slusser v.

Commonwealth, 74 Va. App. 761, 774 (2022). “On appeal, where the restitutionary amount is

supported by a preponderance of the evidence and is ‘reasonable in relation to the nature of the

offense,’ the determination of the trial court will not be reversed.” Burriesci v. Commonwealth,

59 Va. App. 50, 55-56 (2011) (quoting McCullough v. Commonwealth, 38 Va. App. 811, 816-17

(2002) (noting the Commonwealth must prove the damage or loss “incurred . . . as a result of the

offense . . . by a preponderance of the evidence”)). Yet “[a circuit] court by definition abuses its

discretion when it makes an error of law. . . . The abuse-of-discretion standard includes review

to determine that the discretion was not guided by erroneous legal conclusions.” Porter v.

Commonwealth, 276 Va. 203, 260 (2008) (alterations in original) (quoting Koon v. United States,

518 U.S. 81, 100 (1996)).

“In determining whether the trial court made an error of law, ‘we review the trial court’s

statutory interpretations and legal conclusions de novo.’” Rollins v. Commonwealth, 37 Va. App.

73, 79 (2001) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 193 (1998)). Further, we

must look at whether a trial court’s restitution award was guided by an erroneous conclusion that

it could include indirect damages or losses in the award. See Burriesci, 59 Va. App. at 56-57

(noting that “in Howell, the trial court’s restitution order . . . had been premised on an erroneous

legal conclusion—that damages or losses to the victim that ‘result only indirectly from the

offense’ may be included in an order of restitution” (citing Howell v. Commonwealth, 274 Va.

737, 739, 741 (2007))).

II. Restitution Generally

“‘Restitution’ is . . . ‘a restoration of something to its rightful owner: the making good of

or giving an equivalent for some injury (as a loss of or damage to property).’” Howell, 274 Va.

-4- at 740 (quoting Restitution, Webster’s Third New International Dictionary (1993)). Courts often

use restitution in a criminal context “to make the victim whole by compensating him for losses

caused by the offense for which the defendant was convicted.” Fleisher v. Commonwealth, 69

Va. App. 685, 691 (2019). A court may order a defendant to make restitution “for damages or

loss caused by the offense for which conviction was had.” Code § 19.2-305(B). Further, Code

§ 19.2-305.1(A) requires that a defendant receiving probation or a suspended sentence for a

crime “which resulted in property damage or loss” make partial restitution for that property

damage or loss.

This Court has interpreted the restitution code sections to confer wide latitude to trial

courts using restitution as a remedial tool. Ellis v. Commonwealth, 68 Va. App. 706, 712 (2018).

Still, the trial court’s discretion is limited in two ways. First, restitution requirements “must be

reasonable in relation to the nature of the offense, the background of the offender and the

surrounding circumstances.” Deal v. Commonwealth, 15 Va. App. 157, 161 (1992). Next, the

ordered restitution must be for loss or damage directly caused by the defendant’s offense. See

Howell, 274 Va. at 741; Ellis, 68 Va. App. at 715.

The directly-caused-by constraint arises from Virginia courts’ interpretation of Code

§ 19.2-305(B)’s “caused by” language. The Supreme Court of Virginia has read that language to

prevent courts from imposing losses that are too attenuated from the offense. Howell, 274 Va. at

739, 741 (holding that the cost of a security system a victim installed after being burglarized was

related to, but not caused by, the offense and was too attenuated from the offense); Ellis, 68

Va. App. at 715-16 (reversing an award of costs for all items burglarized even though the

defendant was only convicted of receiving one of the stolen items because the offense for which

the defendant was convicted did not directly cause the total amount lost). In adopting the

attenuation language, the Howell Court relied on State v. Chambers, 138 P.3d 405, 414-15 (Kan.

-5- Ct. App. 2006), and noted that the victim in Chambers installed the security system because of

her concern that the defendant would reoffend. Howell, 274 Va. at 741.1 We have interpreted

Howell to bar recovery of costs incurred to prevent future criminal activity. Salazar v.

Commonwealth, 66 Va. App. 569, 584 (2016).

Moreover, a loss or damage is not too remote if a defendant’s offense is a “but for” cause

of the harm. Shelton v. Commonwealth, 66 Va. App. 1, 8 (2016) (affirming an award for a police

officer’s medical expenses when he was injured while pursuing a defendant because the

defendant’s escape from custody was a “but for” cause of the officer’s injuries). Costs are also

directly related to a defendant’s offense when the costs will restore a “pre-existing security

system” rendered ineffective by the defendant’s conduct. Fleisher, 69 Va. App. at 687-88,

690-91 (affirming the costs awarded for reprograming a victim’s second car’s computer and

replacing its keys and locks when the defendant used the victim’s first car without authorization,

abandoned it unlocked, and then the keys to the second car, which were in the first car, went

missing).

However, the “but for” language in Shelton creates a tension with Howell’s attenuation

principle2 because “but for” causation arguably includes an infinite number of events stretching

1 In Chambers, the court reversed a restitution award for a security system, calling it “tangential” to the offense. 138 P.3d at 415. 2 Fundamentally, our disagreement with the concurrence boils down to how we read Howell and explains our disparate rationales. The concurrence reads Howell to implicitly adopt proximate cause. Our reading of Howell instead leads us to believe that the Supreme Court of Virginia recognized restitution awards needed a limiting principle to curtail a trial court’s otherwise broad discretion to impose any number of costs related to the crime. Howell notably excludes discussion of foreseeability and the idea that a defendant is still liable if she put into operation an intervening event. One could hardly argue that Howell could not reasonably foresee his victim increasing security or buying a security system after committing a crime against the victim. Nor could one contend that Howell did not put the victim’s purchase of the security system into operation. In fact, under the concurrence’s application of intentional torts to expand liability in restitution, the security system should be

-6- back to the dawn of time. In fact, “‘but for’ causation-in-fact . . . might impose unlimited

liability . . . for a large number of remote or insignificant causes in time and space.” Peter Nash

Swisher et al., Virginia Practice Tort & Personal Injury Law § 3:23 (July 2021 Update). To

resolve this tension, we borrow aspects of proximate cause to inform a restitution award analysis.

Looking to proximate cause serves as a useful guidepost to limit “but for” causation and

to determine whether a damage or loss is directly caused by the offense. “[P]roximate cause is

‘an act or omission that, in natural and continuous sequence unbroken by a superseding cause,

produces a particular event and without which that event would not have occurred.’” Brown v.

Commonwealth, 278 Va. 523, 529 (2009) (quoting Williams v. Joynes, 278 Va. 57, 62 (2009)).

A superseding or intervening cause is “an independent, intervening act that alone causes the

victim’s injury.” Id. at 529-30 (holding that a defendant that led police on a high-speed chase

proximately caused a victim’s death because the police cruiser crashing into the victim’s car did

not supersede the defendant’s reckless driving).

“An intervening act which is reasonably foreseeable cannot be relied upon as breaking the chain of causal connection between an

included in the restitution costs. Thus, applying a proximate cause analysis to Howell results in an opposite decision to its holding. Further, the Supreme Court of Virginia has shown its familiarity with tort law and proximate cause and has expressly incorporated proximate cause principles into an area of criminal law when it sees fit. Robinson v. Commonwealth, 274 Va. 45, 53 (2007) (interpreting the phrase “involved in an accident” to invoke a proximate cause analysis). Additionally, this Court has more often implemented a proximate cause analysis in criminal negligence cases or when the statute uses the term “proximate,” both of which by their very nature include a proximate cause analysis. Levenson v. Commonwealth, 68 Va. App. 255, 259, 261 (2017); Chapman v. Commonwealth, 68 Va. App. 131, 140-41 (2017), aff’d, 296 Va. 386 (2018). Lastly, this Court has imposed the analysis when both Virginia legal commentary and the Supreme Court of Virginia previously applied proximate cause in a similar situation. See Hawkins v. Commonwealth, 64 Va. App. 650, 654-56 (2015) (applying a proximate cause analysis in an aggravated malicious wounding case that involved medical care after the crime which partially caused the impairment). Simply put, Howell does not go as far as the concurrence would like. Thus, the likelihood of an opposite result in Howell and the lack of proximate cause analysis in Howell, in part, explain why the majority has looked to proximate cause to inform its decision but has retreated from the wholesale adoption of tort law’s proximate cause and intentional tort analysis. -7- original act of negligence and subsequent injury.” Furthermore, an intervening event, even if a cause of the harm, does not operate to exempt a defendant from liability if the intervening event was put into operation by the defendant’s negligent acts.

O’Connell v. Commonwealth, 48 Va. App. 719, 728 (2006) (citations omitted) (quoting

Gallimore v. Commonwealth, 246 Va. 441, 447 (1993)).

Notably, with proximate cause “[t]here is no yardstick by which every case may be

measured and fitted into its proper place. In each case the problem [of proximate cause] is to be

solved upon mixed considerations of logic, common sense, justice, policy and precedent.” Scott

v. Simms, 188 Va. 808, 816 (1949). Turning to proximate cause principles adds to a trial court’s

toolbox in reviewing restitution cases, but it does not control it.3 Instead, it gives trial courts

3 We reject the concurrence’s larger adoption of tort law in restitution cases, specifically the expanded liability imposed on a defendant in the intentional torts’ realm. While parallels have and can be drawn between tort and criminal law, these areas of law continue to remain distinct, guided by different histories, policy objectives, and values.

Aside from the manifest procedural differences between criminal sentencing and civil tort lawsuits, restitution serves purposes that differ from (though they overlap with) the purposes of tort law. Legal fictions developed in the law of torts cannot be imported into criminal restitution and applied to their utmost limits without due consideration of these differences.

Paroline v. United States, 572 U.S. 434, 453-54, 456-58 (2014) (citation omitted) (limiting the application of certain causation tort principles in interpreting a restitution statute which required compensation for losses incurred “as the proximate result of the offenses” because the principles undermined congressional intent and were not demanded by the statute’s text or legal tradition). The Paroline Court noted that it “is required to define a causal standard that effects the statute’s purposes, not to apply tort-law concepts in a mechanical way in the criminal restitution context.” Id. at 461. The United States Supreme Court concluded that

courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the

-8- freedom to draw on experience, common sense, and other legal principles in deciding whether a

loss or damage was directly caused by the defendant’s offense. In light of proximate cause’s

fact-specific nature, we give deference to trial courts acting as fact finder unless they erroneously

include in a restitution award damages indirectly caused by the offense.

III. The Circuit Court’s Restitution Award

Tyler generally contends that the circuit court abused its discretion in awarding restitution

totaling $104,390.07 for the office expenses, insurance costs, legal fees, forensic accounting fees,

VSB fees, and anticipated future costs because they were not directly related to Tyler’s

embezzlement. In light of the direct causal link between Tyler’s embezzlement and many of the

costs, the circuit court did not abuse its discretion in awarding costs for the office expenses,

insurance costs, some legal fees, forensic accounting fees, and anticipated future costs for the

forensic accountant’s testimony.

But the circuit court abused its discretion by erroneously concluding that Tyler’s

embezzlement directly caused the damages relating to some legal fees, the VSB fees, and the

anticipated future audit costs. The Commonwealth failed to prove by a preponderance of the

consequences and gravity of their own conduct, not the conduct of others.

Id. at 462. Expanding restitution awards based on intentional tort principles results in applying “tort-law concepts in a mechanical way in the criminal restitution context” without giving due consideration to the differences in these areas of law. See id. at 454, 461. This is so because criminal law already accounts for intentional conduct. Intentional torts principles capture an element unaccounted-for in the negligence arena: a tortfeasor’s intentional conduct. But intentionality is baked into criminal law. Many aspects of criminal law and its remedies exist specifically to address the defendant’s intentional conduct. In fact, the defendant in Howell intentionally burglarized the victim, otherwise he could not have been convicted. The Howell Court thus recognized that restitution awards must be limited to damages caused by the offense, despite the intentionality of the defendant’s conduct. Had the expanded scope of intentional tort law been applied to the Howell defendant, the Supreme Court of Virginia likely would have affirmed the award of the security system. In sum, the intentional tort principles suggested by the concurrence expand restitution in a way that Howell sought to limit. -9- evidence that several legal fees were directly caused by Tyler’s embezzlement. Moreover,

Tyler’s conduct did not directly cause the VSB fees and anticipated future audit costs because

the firm had an independent duty to monitor and reconcile its accounts and supervise Tyler

which sufficiently attenuated the costs from Tyler’s offense. In sum, this Court affirms the

circuit court’s restitution order in part and reverses in part.

A. Office Expenses4

The $922.02 in office expenses are directly related to Tyler’s embezzlement. Tyler’s

criminal conduct was the “but for” cause of the office expenses given that these costs would not

have arisen otherwise and they returned the firm to its pre-crime status. If Tyler had not

embezzled from and compromised the firm’s bank accounts, the firm would not have had to

change the account numbers and purchase new checks. While buying checks would otherwise

be routine at a law firm, the firm purchased the checks only after it had to change the account

numbers to protect the accounts due to Tyler’s embezzlement. Further, if she had not stolen

money from the firm and had returned the office key, the firm would not have had to change the

office locks. Finally, Tyler’s conduct directly caused the overdraft fee the firm paid because the

firm would not have had to pay it but for Tyler moving money around during her embezzlement

and draining the firm’s accounts.

4 Despite the Commonwealth’s contentions, Tyler adequately preserved her objections to the restitution award of the firm’s office expenses and anticipated future costs. At sentencing, her counsel generally objected to the $125,000 in restitution and objected to the “VSB bar fees,” claiming “the bar issue is separate.” He then stated, “We would object to the attorney’s fees that . . . were part of the civil suit . . . . I would object to the insurance fees or other common business expenses, new checks, forensic accounting fees . . . .” Given Tyler’s general objection to the amount, the circuit court knew that Tyler was challenging most of the expenses listed in Exhibit 6. Tyler’s counsel referenced the bar issue, which included the anticipated future costs of the audits the VSB imposed as part of the sanction. The common business expenses and new checks sufficiently encompassed office expenses like changing office locks and paying the overdraft fee. Thus, Tyler objected “with sufficient specificity” so that the circuit court could timely address the objection. Scott v. Commonwealth, 58 Va. App. 35, 44 (2011); Rule 5A:18. - 10 - Much like Fleisher, Tyler had compromised the firm’s ability to protect its financial

assets. Changing the account numbers, locks, and checks allowed the firm to “return[] . . . to the

pre-crime status when [it] controlled access to [its assets].” Fleisher, 69 Va. App. at 691. The

strictures in Howell which prevent a trial court from awarding expenses as restitution for

measures taken solely to prevent future crime do not apply to these expenses. Though the

expenses were “prompted by concern that [defendant] . . . would reoffend,” Howell, 274 Va. at

741 (first alteration in original), Fleisher distinguishes between security upgrades, like installing

a new security system, and restoration of security measures, like changing locks and car keys,

Fleisher, 69 Va. App. at 690-91. As a result, the circuit court did not err in awarding the

$922.02 in office expenses because Tyler’s conduct directly caused the expenses and the firm

incurred the expenses to restore it to its pre-crime status.

B. Insurance Costs

The circuit court did not err in awarding the insurance costs as restitution. Of the total

amount, $6,357 was for a tail end coverage fee the firm needed to obtain new insurance because

its malpractice insurer refused to reinsure the firm when the firm could not pay its client the

$300,000 payoff check that Tyler had embezzled. The remaining insurance cost is the legal fees

the firm’s real estate insurer charged it for the insurer’s federal lawsuit against the firm after

another client made a claim against the insurance bond. The insurer sued when it discovered that

Tyler had likely embezzled an amount greater than the $200,000 bond the insurer issued to the

firm. Under the agreement, the firm was required to provide $200,000 in collateral security upon

the insurer’s demand, but could not do so because Tyler drained the firm’s accounts.

Both of these insurance costs are directly caused by Tyler’s embezzlement. Tyler’s

conduct was the “but for” and proximate cause of these costs. Without Tyler’s embezzlement,

the clients would have received their money, the firm would not have had any claims against it,

- 11 - and even if it had, it likely would have had sufficient assets to cover the collateral security

required by the real estate insurer. Moreover, the firm’s malpractice insurer would have renewed

the insurance contract, preventing the firm from paying the tail end coverage costs to obtain new

insurance. Further, Tyler’s criminal conduct proximately caused the insurance costs because the

firm’s failure to oversee its accounts and Tyler could not independently cause the harm it

suffered and did not act as an intervening cause between Tyler’s acts and the harm. Overall, “but

for” Tyler’s embezzlement, the firm would not have incurred the insurance costs, and the firm

did not independently cause this harm. Therefore, the insurance costs are directly related to the

offense, and we affirm the circuit court’s $14,060.50 award for these costs.

C. Legal Fees

The circuit court abused its discretion in awarding some of the legal fees. Initially, the

legal fees must be divided into several categories. The first legal fees are for the suit by the

client to whom the firm owed $300,000 (client suit). Next are the fees from the firm’s civil suit

against Tyler which includes both the fees explicitly referencing the suit and the fees labeled

“Atty’s fees” (Tyler suit).5 Additionally, the firm listed several legal fees without explaining

what the case was about or identifying which case the fee referenced. These included fees

marked Markel case (Markel case fees), others labeled embezzlement expenses (embezzlement

expenses), and lastly others marked legal services fees (legal services fees). One of the firm’s

5 The “Atty’s fees” have been included because the fees were paid to the same law firm that handled the law firm’s Tyler suit. - 12 - partners, Leah Hernandez, briefly explained the client and Tyler suits but not the Markel case

fees, embezzlement expenses, or legal services fees.6

As to the client and Tyler suits, “but for” Tyler’s criminal conduct, the suits would not

have happened. Indeed, Tyler told the firm that she had the $300,000 payoff check, the very

basis of the client suit, in her purse. Had she not stolen the check, the client would have received

the payoff check and would not have sued. Additionally, the firm would not have had to sue

Tyler if she had not embezzled hundreds of thousands of dollars from it. As discussed above, the

firm’s failure to oversee Tyler and its bank accounts was not an intervening event because its

failure alone could not have caused the need to defend against a client suit and to sue Tyler.

Thus, the Tyler and client suits’ legal fees are directly related to Tyler’s embezzlement.

Yet the Commonwealth did not prove by a preponderance of the evidence the connection

between Tyler’s embezzlement and the Markel case fees, embezzlement expenses, and legal

services fees. Instead, the only discussion of the legal fees lumps all the amounts together

without demonstrating how each of the fees was related. Markel is the firm’s former insurer, but

the record does not reveal any information about how the Markel case fees related to Tyler’s

embezzlement. Additionally, the record fails to show how the firm incurred the embezzlement

expenses and legal services fees as a result of the offense.7 Thus, the Commonwealth failed to

6 The only discussion of the legal fees was Hernandez stating

The next, our legal fees. We incurred legal fees due to the suit against us by the [client] for the three hundred thousand (300,000) that we did not have within our account. We also incurred attorney fees with a civil suit against Ms. Tyler, in order to attempt to get some type of restitution money before being here before this court, and so that is the next section right there that says legal fees. 7 Though the firm incurred the legal services fees at the same law firm as the fees it paid in the Markel case and the client suit, no evidence explains to which case the legal services fees related. - 13 - prove by the preponderance of the evidence that Tyler’s conduct directly caused these legal fees.

As a result, the circuit court erred in awarding these legal fees. In short, we affirm $4,255 in

legal fees from the client and Tyler suits and reverse the restitution award as to the $10,367.50

for the other legal fees.

D. Forensic Accounting Fees

Further, the forensic accounting fees are directly caused by Tyler’s embezzlement. The

different forensic accounting fees consist of the costs of hiring two accounting firms once the

firm discovered Tyler’s embezzlement. The firm had to hire a second accounting firm after the

first accounting firm realized it lacked the resources to untangle the embezzlement’s complexity.

The firm only needed forensic accounting because Tyler embezzled money from it. In fact,

Tyler’s embezzlement forced the firm to conduct forensic accounting to establish how much

Tyler had taken from specific clients and accounts so it could eventually reconcile its client

ledgers and accounts. Moreover, persuasive caselaw has noted that amounts “paid for attorneys

and accountants” to uncover the embezzlement’s extent “would be considered a loss caused

by . . . embezzlement.” Boley v. Commonwealth, No. 0033-12-2, slip op. at 4 n.2 (Va. Ct. App.

Apr. 16, 2013). Again, the firm’s failure to oversee its accounts and Tyler’s actions could not

have been an intervening event because its failure alone could not have caused it to need forensic

accounting. Therefore, Tyler’s criminal conduct was both the “but for” and proximate cause of

the forensic accounting fees.

Although Tyler’s embezzlement directly caused the need for the forensic accounting fees,

we address a limitation imposed in a Fourth Circuit case the Howell Court relied on to limit

restitution awards. See Howell, 274 Va. at 741 (citing United States v. Vaughn, 636 F.2d 921,

923-24 (4th Cir. 1980)). In Vaughn, 636 F.2d at 925, the Fourth Circuit held that the trial court

could not award as a condition of probation the IRS’s costs for investigating the defendant’s tax

- 14 - evasion. It reasoned that “[t]he costs of investigation result only indirectly from the offense of

income tax violation.” Id. at 923. It also noted that the investigation “was a step removed from

the defendant’s misconduct” because the investigation “was not the event causing the

government’s initial loss of tax revenues.” Id. The Fourth Circuit concluded that “[t]he costs to

the government in performing its function of investigation and prosecution, however, would

seem too remote from the offense itself to be recoverable as a condition of probation.” Id.

Vaughn does not control this case’s outcome for two reasons. Mainly, the firm would

have had to conduct forensic accounting even if criminal charges were never brought to ensure

that it could identify the magnitude of Tyler’s embezzlement and the clients the crime affected.

The firm could not have continued as a functioning business without unraveling the extent of

Tyler’s crime. In fact, the embezzlement required the firm to hire a forensic accountant because

Tyler had so convoluted its records that it could not comply with IRS requirements until it fixed

its books. In contrast, the IRS’s investigation in Vaughn was not so essential to the IRS’s

business that it could not carry on without the investigation. Id. Vaughn is also distinct because

the government, in this case the IRS, was both the victim and the investigative and prosecutorial

mechanism. Id. at 924-25. Allowing the government to charge for its own investigations

misaligns its incentives for investigating criminal conduct.

In sum, because Tyler’s embezzlement directly caused the firm to incur costs for forensic

accounting and Vaughn does not control this case’s outcome, we affirm the circuit court’s award

of $34,493.75 for the forensic accounting fees.

E. VSB Fees

As to the VSB fees, Tyler’s crime was not the “but for” cause of the fees because the firm

had independent duties to maintain and reconcile various financial records and supervise

nonlawyer employees. The VSB fees include monetary sanctions imposed directly against one

- 15 - of the firm’s partners, which the firm helped pay, and the cost of one audit which the VSB

required as a sanction. The VSB agreed disposition details the nature of the firm’s misconduct

which included violating the Virginia Rules of Professional Conduct Rule 1.15 Safekeeping

Property and Rule 5.3 Responsibilities Regarding Nonlawyer Assistants. Rule 1.15 requires the

firm to maintain certain records, properly manage client funds and property, and comply with

certain accounting procedures. Moreover, Rule 1.15 requires firms to reconcile their client

ledgers, cash receipts journal, and trust account balances and have a lawyer approve those

records on either a monthly or quarterly basis.8 Rule 5.3 requires managerial partners to ensure

that a nonlawyer employee’s behavior is “compatible with the professional obligations of the

lawyer.” Rule 5.3 also states that a lawyer is responsible for its employee’s conduct if the lawyer

had managerial or supervisory authority “and should have known of the conduct at a time when

its consequences c[ould] be avoided or mitigated but fail[ed] to take reasonable remedial action.”

In outlining the firm’s misconduct, the VSB decision focused on the firm’s failure to

“perform the accountings, audits, reconciliations, or other responsibilities of client trust

accounts,” keep proper records, oversee or reconcile accounts, and supervise Tyler, its nonlawyer

employee. According to the Rules of Professional Conduct, both Rules 1.15 and 5.3 are

mandatory and “define proper conduct for purposes of professional discipline.” Va. Rules of

Pro. Conduct, Scope.9 As a result, the firm was independently required to maintain certain

records, reconcile its client accounts, and supervise nonlawyer employees, regardless of whether

Tyler was embezzling funds. Further, Rule 5.3 states that “a lawyer shall be responsible for” an

8 The VSB decision references the three versions of Rule 1.15 in effect during Tyler’s embezzlement which included different timing requirements. 9 Both rules use the term shall, which the Virginia Professional Rules of Conduct has described as an imperative. Va. Rules of Pro. Conduct, Scope. - 16 - employee’s conduct that violates the Rules of Professional Conduct if the attorney knew or

should have known about the conduct and could have prevented or mitigated the consequences.

Before Tyler even worked at the firm, the firm had a duty to comply with Rules 1.15 and

5.3, which was ongoing and, in this case, continuously unmet.10 Because Tyler’s crime occurred

during the firm’s misconduct in failing to comply with the Rules of Professional Conduct, the

embezzlement could not be the “but for” cause of this harm. Instead, it was the firm’s failed

compliance that led to the VSB fees. Tyler’s embezzlement was merely the “but for” cause of

the revelation of the misconduct in which the firm was already engaging.

Hernandez admitted that nobody at the firm reviewed the firm’s bills or bank statements,

which resulted in the firm failing to identify Tyler’s embezzlement for over eight years. Unlike

the other expenses, the VSB fees were directly caused by the firm failing to comport with the

Rules of Professional Conduct. The Rules created independent obligations for the firm. Thus,

the firm engaged in misconduct by violating its own mandatory professional ethics rules for

many years. As a result, the firm’s acts or failures to act alone would have subjected it to

sanctions without Tyler’s crime, even though the VSB would have had much more difficulty

detecting the firm’s misconduct.

Because the firm could have been sanctioned regardless of Tyler’s embezzlement, her

crime was not a “but for” cause of the VSB fees. Therefore, we reverse the circuit court’s award

of the $11,216.30 in VSB fees as restitution.

F. Anticipated Future Costs

Lastly, the circuit court properly awarded one of the anticipated future costs but should

have excluded the other. The anticipated future costs consist of the audits the VSB required the

10 Both rules were adopted in 2000. Tyler began working at the firm in 2003. Va. Rules of Pro. Conduct Rules 1.15, 5.3. - 17 - firm to conduct every six months for two years and the forensic accountant’s testimony fee. The

VSB imposed the audits as a sanction for the firm’s misconduct. As discussed in the VSB fees

section, the firm could have incurred the anticipated future audit costs sans Tyler’s involvement

because of its independent acts of failing to perform certain accountings, reconcile various

accounts, and supervise nonlawyer employees. Consequently, Tyler’s embezzlement was not the

“but for” cause of the audit expenses. Therefore, the circuit court should have excluded this

amount from the restitution award.

But the forensic accountant’s testimony fee is directly related to Tyler’s embezzlement

because his testimony would have been unnecessary if she had not embezzled from the firm.

Further, the firm’s failure to oversee Tyler and the accounts was not an intervening event to

break the causal chain between Tyler’s conduct and the testimony fee. Thus, the circuit court

properly awarded the accountant’s testimony fee as restitution. As a result, this Court reverses

the trial court’s restitution award for the audit costs totaling $28,000 but affirms the testimony

fee of $1,075.

Overall, many of the costs were directly related to Tyler’s embezzlement. Yet, the

unrelated legal fees, the VSB fees, and the anticipated future audit costs were not directly related

to Tyler’s embezzlement. In all, these expenses should not have been included in the restitution

award because the Commonwealth failed to prove the connection to Tyler’s crime or the firm

had an independent duty to act.

CONCLUSION

Ultimately, because some costs are directly caused by Tyler’s embezzlement, this Court

affirms $76,224.45 of the restitution award for the office expenses, insurance costs, the client and

Tyler suits’ legal fees, forensic accounting fees, the future anticipated costs for the forensic

accountant’s testimony, and other costs not challenged by Tyler. Yet we reverse the award as to

- 18 - $49,583.80 for the Markel case fees, embezzlement expenses, and legal services fees, the VSB

fees, and the anticipated future audit costs. We remand this case to the circuit court solely to

correct the figures in the restitution and sentencing orders.

Affirmed in part, reversed in part, and remanded.

- 19 - Raphael, J., concurring in the judgment.

I concur in the judgment with regard to the disposition of the various elements of

restitution at issue on this appeal. I write separately because I disagree with the majority that the

contours of the proximate-cause doctrine are narrower for criminal restitution than in tort law.

And just as the scope of liability is broader for intentional torts than for torts based on

negligence, the scope of a defendant’s potential liability in restitution should be broader for

crimes that involve intentional wrongdoing, like the crime of embezzlement here. Although I

agree with the majority that the trial court erred in awarding restitution for the law firm’s costs of

defending the VSB proceeding and for two years of auditing costs, I disagree with the majority’s

rationale. Tyler’s embezzlement was the but-for cause of those damages. But it was not the

legal cause. Because the law firm’s violation of the Virginia Rules of Professional Conduct was

the legal cause of that injury, the ex turpi causa doctrine precludes restitution for those costs.

I.

At the outset, it bears repeating that a trial court’s power to impose a full restitution

award does not mean that full restitution is required in every case. As this Court recently

explained, it is the rare criminal offense in Virginia that mandates restitution for “the full amount

of damages.” Slusser v. Commonwealth, 74 Va. App. 761, 771 (2022) (quoting Code

§ 19.2-305.1(B2)). In most cases in which restitution is ordered as a condition of a suspended

sentence, only “partial” restitution is required. Id. (citing Code §§ 19.2-303, 19.2-305(B),

19.2-305.1(A), (B)).

As the Court made clear in Slusser, restitution serves overlapping but different purposes

from tort law. Id. Similar to tort law, those purposes can include compensation to the victim and

deterrence. Id. at 770-71. Thus, when determining restitution, a trial court may award full

restitution to “help make the victim of a crime whole.” Id. at 770 (quoting McCullough v.

- 20 - Commonwealth, 38 Va. App. 811, 815 (2002)). But restitution may also serve the purpose of

rehabilitation. Id. at 770-71. And a trial court may properly determine that the goal of

rehabilitation would be disserved by imposing a restitution award so large that the defendant

could never repay it. See, e.g., Rapozo v. State, 497 P.3d 81, 96 (Haw. 2021) (“[A] restitution

order patently beyond an offender’s capacity for compliance serves no purpose, reparative or

otherwise.”); People v. Kay, 111 Cal. Rptr. 894, 896 (Cal. Ct. App. 1973) (“[T]o subject a

defendant to a judgment which he cannot pay and has no reasonable prospect of paying . . . is of

little use to the victim of the crime, and is apt to be either frustrating to a repentant probationer or

perversely satisfying to a rebellious one.”).

In this case, however, the trial court found it appropriate to impose a full restitution

award that would compensate the law firm for the injury that it suffered due to Tyler’s

embezzlement. The trial court said this was “without question the most egregious embezzlement

case” it had ever seen. The court’s determination to award full restitution was a proper exercise

of its sentencing discretion. The role of this Court on appeal is limited to determining whether

the trial court abused its discretion by awarding elements of restitution for which Tyler is not

legally responsible. “It is immaterial that other judges ‘might have reached a different

conclusion than the one under review.’” Slusser, 74 Va. App. at 774 (quoting Fleisher v.

Commonwealth, 69 Va. App. 685, 689 (2019). “When imposing sentence, the [trial] court ‘has a

range of choice, and . . . its decision will not be disturbed as long as it stays within that range and

is not influenced by any mistake of law.’” Id. (quoting Fleisher, 69 Va. App. at 691).

II.

The starting point for this Court’s analysis should be the causation requirement in the

restitution provisions of the Code. Restitution may be awarded only for the “damages or loss

caused by the offense.” Code § 19.2-303; see also Code §§ 19.2-305(B) (same), 19.2-305.1(B)

- 21 - (“damage or loss caused by the crime”). Our Supreme Court has held that this causation

requirement limits restitution to those damages or losses that were “directly caused by the

offense.” Howell v. Commonwealth, 274 Va. 737, 741 (2007) (quoting United States v.

McMichael, 699 F.2d 193, 195 (4th Cir. 1983)). “Costs that result only indirectly from the

offense, that are a step removed from the defendant’s conduct, are too remote and are

inappropriate for a restitution payment.” Id.

Although Howell did not use the phrase “proximate cause,” the causation requirement

described in Howell reflects “the long-accepted definition of proximate cause.” Ford Motor

Corp. v. Boomer, 285 Va. 141, 150 (2013). “The proximate cause of an event is that act or

omission which, in natural and continuous sequence, unbroken by an efficient intervening cause,

produces that event, and without which that event would not have occurred.” Id. (quoting Wells

v. Whitaker, 207 Va. 616, 622 (1966)).

“Established principles of proximate causation are applicable in both civil and criminal

cases.” Brown v. Commonwealth, 278 Va. 523, 529 (2009). Accordingly, I would make explicit

what Howell made implicit: the causation standard for determining the outer limit of criminal

restitution is coextensive with the doctrine of proximate cause in tort law.

Although courts in some jurisdictions describe cause-in-fact as a separate requirement

from “proximate cause,” our Supreme Court considers it “a subset of proximate cause.” Boomer,

285 Va. at 150 n.2. “The first step in determining factual causation ‘is often described as the

“but for” or sine qua non rule.’” AlBritton v. Commonwealth, 299 Va. 392, 406 n.8 (2021)

(quoting Wells, 207 Va. at 622). In general, conduct “is a factual cause of harm when the harm

would not have occurred absent the conduct.” Boomer, 285 Va. at 155 (quoting Restatement

(Third) of Torts: Liability for Physical and Emotional Harm § 26 (2010)). This cause-in-fact test

- 22 - asks the counterfactual question whether the harm would not have occurred but for the tortious

conduct.

The second step is determining whether a but-for cause is nevertheless so attenuated from

the resulting harm that it fails to constitute the legal cause. AlBritton, 299 Va. at 406 n.8. This

aspect of the proximate-cause inquiry has “been described as a shorthand descriptive phrase for

the limits the law has placed upon an actor’s responsibility for his conduct.” Id. (quoting Wells,

207 Va. at 622).11

To be sure, courts have struggled to draw the line where “legal cause” or “proximate

cause” limits the harms that would otherwise qualify for compensation under the but-for test. “It

may readily be conceded that ‘proximate cause’ is an unsatisfactory phrase. It has not only

troubled the unlearned, but has vexed the erudite.” Etheridge v. Norfolk S. R.R. Co., 143 Va.

789, 799 (1925) (citation omitted). But it is “too late” now—just as it was a century ago—“to

discard” proximate cause. Id.

The proximate-cause analysis is also vexed by the respective roles of the judge and the

jury (or, in a bench trial, the trial judge sitting as fact finder). Generally, causation and

proximate cause are issues for the fact finder to decide. Fox v. Deese, 234 Va. 412, 427 (1987);

Hall v. Commonwealth, 32 Va. App. 616, 632 (2000) (en banc). But “there are cases in which

the state of the evidence is such that the absence of proximate cause is so apparent that the court

is required [to so] hold as matter of law.” Scott v. Simms, 188 Va. 808, 816 (1949). As the

majority points out, however, there is “no yardstick,” id., that invariably identifies when the

11 The majority errs in saying that “a loss or damage is not too remote if a defendant’s offense is a ‘but for’ cause of the harm.” Supra at 6. That misunderstands the function of the legal-cause element of proximate cause. There may be many but-for causes of an event that are nonetheless too attenuated to be the legal cause. Put another way, “Although all legal causes are factual causes, there can be factual causes that are not legal causes.” Chapman v. Commonwealth, 68 Va. App. 131, 141 (2017). - 23 - court must decide the proximate-cause question as a matter of law, taking that decision away

from the fact finder.

That problem maps onto criminal restitution cases as well. The trial judge, acting as the

fact finder, must determine whether the harms for which restitution is sought were proximately

caused by the defendant’s offense. And appellate courts must give those judgments deference

unless the causal relationship is so attenuated that no reasonable trial judge could determine that

proximate cause has been established.

This Court’s appellate deference to the trial court’s proximate-cause determinations

should also consider the difference between intentional misconduct and negligence. Assuming

that the tortfeasor’s conduct is the but-for cause of the victim’s injury, the scope of the

tortfeasor’s liability is broader for intentional torts than for negligence. The Restatement

(Second) of Torts explicitly recognized that distinction. See Restatement (Second) of Torts

§ 435B (1965). Broader liability for intentional torts turns on the idea “that responsibility for

harmful consequences should be carried further in the case of one who does an intentionally

wrongful act than in the case of one who is merely negligent . . . .” Id. cmt. a. In other words,

the intentional tortfeasor may be required “to respond for compensatory damages in cases where,

were he merely negligent, he would not be required to pay damages.” Id.

The American Law Institute carried forward that principle in § 33(b) of the Restatement

(Third) of Torts:

An actor who intentionally or recklessly causes harm is subject to liability for a broader range of harms than the harms for which that actor would be liable if only acting negligently. In general, the important factors in determining the scope of liability are the moral culpability of the actor, as reflected in the reasons for and intent in committing the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree to which the actor’s conduct deviated from appropriate care.

- 24 - Restatement (Third) of Torts, supra, § 33(b). See also id. cmt. b (“The Restatement Second of

Torts §§ 435B and 501(2), which correspond to Subsection (b) of this Section, state the general

principle that the moral culpability of an intentional or reckless tortfeasor is a relevant and

important factor to take into account in determining the scope of liability.”).

The two illustrations for that principle are helpful. Suppose the victim breaks up with his

girlfriend while she is working as a bartender at a tavern. The bartender continues to pour drinks

for him, “hop[ing] that his inebriation would lead to his being harmed.” Id., illus. 1. Driving

home, the victim hits a telephone pole, suffering physical injuries. Suppose further that the

jurisdiction in question “does not permit a common-law claim by a patron against a tavern

keeper for negligently supplying alcohol to that patron while intoxicated, on the ground that the

patron’s drinking alcohol, not the serving of alcohol, is the proximate cause of harm.” Id.12

Under the expanded scope of liability for intentional torts, the defendant’s “serving alcohol to

[the victim] for the purpose of causing harm may be found by the factfinder to be within the

scope of [the defendant’s] liability.” Id.

The second illustration involves a depression-sufferer who is injured by a blast from a

bomb that the defendants have planted in a high-school parking lot, hoping to injure those in the

vicinity. The explosion injures the already vulnerable victim, who commits suicide a year later.

“Damages for [the victim’s] death may be found by the factfinder to be within the scope of [the

defendants’] liability for their intentional conduct,” provided the fact finder concludes “that the

injury from the bomb was a factual cause of [the victim’s] suicide.” Id., illus. 2.

The Restatement (Third) explains that this “greater-scope-of-liability principle” in

§ 33(b) “is universally accepted and applied at the same high level of generality as is expressed

12 Virginia is such a jurisdiction. See Williamson v. Old Brogue, Inc., 232 Va. 350, 353 (1986). - 25 - in Subsection (b).” Id. cmt. e. While there appears to be no Virginia precedent recognizing this

principle, it provides the appropriate rule of decision here, particularly since our Supreme Court

has frequently followed the Restatement of Torts on commonly recognized doctrines like this

one.13

Treating proximate-cause principles symmetrically in the criminal and civil contexts, the

broader liability for intentional torts should likewise be coextensive with criminal-restitution

awards for crimes involving intentional wrongdoing. Courts in Iowa and Massachusetts have

expressly held that § 33(b) of the Restatement (Third) applies when judging the scope of liability

for criminal restitution. See State v. Roache, 920 N.W.2d 93, 101-02 (Iowa 2018) (“The scope of

liability is broader for intentional torts . . . . [W]e now hold that the Restatement (Third) of

Torts’ risk standard for scope of liability applies in criminal restitution determinations.”);

Commonwealth v. Buckley, 57 N.E.3d 1051, 1057-58 (Mass. App. Ct. 2016) (same). Their

decision to do so is correct.

The majority misreads Howell to somehow restrict the scope of proximate cause

applicable to criminal restitution. But other than not using the phrase “proximate cause,” Howell

provides no support for that conclusion. To the contrary, Howell, Slusser, and Fleisher all stand

for the proposition that a crime that causes a victim to undertake improvements that make the

victim better off than before are nonetheless not the legal cause of those expenditures, even if the

victim would not have undertaken those improvements but for the crime. See Howell, 274 Va. at

13 E.g., Doe v. Baker, 299 Va. 628, 655 (2021); Shoemaker v. Funkhouser, 299 Va. 471, 481-82 (2021); Padula-Wilson v. Landry, 298 Va. 565, 576 (2020); Tingler v. Graystone Homes, Inc., 298 Va. 63, 87 (2019); A.H. v. Church of God in Christ, Inc., 297 Va. 604, 622-23 (2019); Barr v. Atl. Coast Pipeline, LLC, 295 Va. 522, 531 (2018); Coward v. Wellmont Health Sys., 295 Va. 351, 360-61 (2018); Palmer v. Atl. Coast Pipeline, LLC, 293 Va. 573, 581-82 (2017); see also Boomer, 285 Va. at 154-58 (following Restatement (Third) of Torts in rejecting “substantial contributing factor” causation); but see Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 424 n.4 (1988) (“Virginia law has not adopted § 402A of the Restatement (Second) of Torts and does not permit tort recovery on a strict-liability theory in products-liability cases.”). - 26 - 741 (denying restitution for a new security system when none was there before); Slusser, 74

Va. App. at 776 (distinguishing compensable repair costs that would restore the victim’s

burned-down home to its pre-crime status from non-compensable betterments like new

appliances and upgraded fixtures); Fleisher, 69 Va. App. at 691 (affirming restitution for

replacement of lock-and-key systems for the victim’s two cars, not as “security upgrades,” but to

restore the victim “to the pre-crime status when she controlled access to her cars”). Those

rulings also align with the purpose of compensatory damages: “to put an injured person in a

position as nearly as possible equivalent to his position prior to the tort.” Restatement (Second)

of Torts § 901 cmt. a (1979).

Neither the Supreme Court of Virginia nor this Court has applied a more limited version

of proximate cause to criminal statutes compared to civil statutes. The Supreme Court has

described proximate-cause principles as “constant,” whether “considered in a civil or criminal

context.” Robinson v. Commonwealth, 274 Va. 45, 53 (2007) (quoting Gallimore v.

Commonwealth, 246 Va. 441, 447 (1993)).

We too have applied proximate-cause standards from tort law symmetrically in criminal

cases. See Levenson v. Commonwealth, 68 Va. App. 255, 259 (2017); Chapman v.

Commonwealth, 68 Va. App. 131, 140-41 (2017); Hawkins v. Commonwealth, 64 Va. App. 650,

655 (2015). The criminal statutes at issue in those cases had wording that, like the restitution

statutes here, failed to warrant any departure from standard proximate-cause analysis. Robinson

found proximate-cause principles implicit in the phrase “involved in an accident” in Code

§ 46.2-894. 274 Va. at 53-54. Levenson applied standard proximate-cause analysis to

Code § 18.2-36.1(A), which looks to whether the unintentional death of another occurred “as a

result of” the defendant’s driving under the influence. 68 Va. App. at 259. And Hawkins

applied standard proximate-cause analysis to malicious wounding under Code § 18.2-51.2, which

- 27 - criminalizes conduct that “causes bodily injury.” 64 Va. App. at 654-55. We found standard

proximate-cause principles applicable even in Chapman, despite that the statute there, Code

§ 46.2-868(B), required that the victim’s death be “the sole and proximate result” of the

defendant’s reckless driving. 68 Va. App. at 140-45.

If normal proximate-cause principles were warranted by the statutes in those cases, why

not by the language of the statutes that permit restitution for “damages or loss caused by” the

offense? Code §§ 19.2-303, 19.2-305(B), 19.2-305.1(B). I see no principled basis to treat the

causation standard for criminal restitution differently from the causation standard in other

criminal contexts.

III.

Applying standard proximate-cause principles here, I conclude that Tyler’s

embezzlement was the but-for cause of those damages for which the Court has upheld the trial

court’s restitution award. I further agree that those damages were not so attenuated or indirect as

to not have been proximately caused by Tyler’s misconduct.

I also agree with the majority that the trial court erred in awarding restitution for the law

firm’s costs of defending itself in the VSB disciplinary proceeding and its costs to comply with

the VSB’s future-auditing requirement. But I disagree with the majority’s rationale.

The majority mistakenly concludes, supra at 15-17, that Tyler’s embezzlement was not

the but-for cause of the costs of defending the VSB proceeding nor of the VSB-auditing

requirement. The majority reasons that, “Because the firm could have been sanctioned

regardless of Tyler’s embezzlement, her crime was not a ‘but for’ cause of the VSB fees.” Supra

at 17. As the Commonwealth correctly points out, however, “If Tyler had not stolen the firm’s

funds, a bar complaint would not have been filed with the VSB,” and there likely would not have

been a disciplinary proceeding that resulted in a reprimand and imposed a future “auditing

- 28 - requirement.” The majority fails to explain why the Commonwealth is wrong about that. If the

majority’s position depends on the assumption that there can only be one proximate cause of an

event, that is incorrect. See, e.g., Rich v. Commonwealth, 292 Va. 791, 800 (2016) (“Because an

event can have more than one proximate cause, criminal liability can attach to each actor whose

conduct is a proximate cause unless the causal chain is broken by a superseding act that becomes

the sole cause of the [event].” (quoting Brown, 278 Va. at 529)).

I do not underestimate the difficulty of determining whether the VSB costs are so

attenuated that Tyler’s embezzlement could not be said to be the legal cause of that injury. I see

three possible answers and conclude that the third one is correct.

One answer—rejecting Tyler’s liability—might be based on the Restatement’s exception

to the expanded scope of liability for intentional wrongdoing when the risk of harm “was not

increased by the actor’s intentional or reckless conduct.” Restatement (Third), supra, § 33(c).

Under § 33(c), “intentional and reckless tortfeasors are not liable for harms whose risks were not

increased by the tortious conduct, even if that conduct was a factual cause of the harm.” Id.,

cmt. f. Illustration No. 3 is informative. Suppose two defendants attempt to assault a victim and

the victim, running away, is “struck by lightning,” suffering “serious burns.” Id., illus. 3. The

defendants, “despite their assault on [the victim], are not liable for his harm because their assault,

while a factual cause of [the victim’s] burns, did not increase the risk of being struck by lightning

and suffering burns.” Id.

Are the law firm’s costs of defending the VSB proceeding and its future VSB-auditing

costs like the burns caused by the lightning strike? I think not. In Illustration 3, the defendants’

misconduct did not increase the risk that the victim would be struck by lightning. In this case, by

contrast, Tyler’s embezzlement surely increased the risk that the law firm would be disciplined

by the VSB for its lack of internal controls. That lack of controls continued, undiscovered, for

- 29 - eight years or more until Tyler’s scheme unraveled and came to light. So the exception in

§ 33(c) is inapplicable.

The second possible answer is that the VSB costs were proximately caused by Tyler’s

embezzlement, consistent with the expanded scope of liability for intentional wrongdoing under

§ 33(b). True, the law firm’s own carelessness and lack of internal controls enabled Tyler to

exploit its vulnerability, stealing from the law firm and its clients for years. A sentencing judge

could certainly deny restitution on that ground. But awarding compensation would also be

consistent with the “familiar principle that contributory negligence is not a defense to an

intentional tort.” Williams v. Harrison, 255 Va. 272, 275 (1998) (citing Restatement (Second) of

Torts § 481 (1965)). That principle is necessary to provide fair compensation to victims whose

lack of care has made them particularly vulnerable to criminal exploitation. Just as a tortfeasor

takes the plaintiff as he finds him under the “egg-shell-skull doctrine,” Carrington v. Aquatic

Co., 297 Va. 520, 527 & n.3 (2019), a criminal defendant “cannot raise the victim’s comparative

fault as a defense” to restitution, Roache, 920 N.W.2d at 103. The wrongdoer may be held

“criminally responsible for all the legal consequences of his crime, irrespective of the lack of

care of his victim.” Restatement (Second) of Torts § 918 cmt. a (1979) (emphasis added).

There is yet a third possible answer—the correct one, I think. When assessing legal

cause, a victim’s illegal conduct or violation of positive law is materially different from a

victim’s mere carelessness. The Supreme Court of Virginia has repeatedly applied the ex turpi

causa doctrine originally set forth by Lord Mansfield in Holman v. Johnson, 1 Cowp. 341, 98

Eng. Rep. 1120 (K.B. 1775):

No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If . . . the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, . . . he has no right to be assisted.

- 30 - Id. at 343, 98 Eng. Rep. at 1121; see Miller v. Bennett, 190 Va. 162, 165 (1949); Maughs v.

Porter, 157 Va. 415, 422 (1931); S. Ry. Co. v. Rice’s Adm’x, 115 Va. 235, 245 (1913); Roller v.

Murray, 112 Va. 780, 783-84 (1911). “The rule applies to both tort and contract actions, and

when applied to tort actions, ‘consent or participation in an immoral or unlawful act by plaintiff

precludes recovery for injuries sustained as a result of that act.’” Wackwitz v. Roy, 244 Va. 60,

64 (1992) (quoting Miller, 190 Va. at 165). So when a claimant “seeks monetary reward for

harm resulting from the unlawful conduct, the public interest is protected sufficiently by criminal

sanctions and does not require that the participant receive compensation.” Zysk v. Zysk, 239 Va.

32, 34-35 (1990), overruled on other grounds, Martin v. Ziherl, 269 Va. 35, 43 (2005).

While the law firm would not have incurred the VSB costs but for Tyler’s embezzlement,

those costs were also caused by its own violation of the Virginia Rules of Professional Conduct:

Rule 1.15, governing the safekeeping of client property, and Rule 5.3, governing its obligations

to supervise nonlawyer assistants like Tyler. The Virginia State Bar determined in an agreed

disposition that those rules imposed mandatory legal obligations on the law firm, the breach of

which subjected it to professional discipline in the form of a public reprimand and a two-year

auditing requirement.14 Because the law firm’s “transgression of a positive law,” Miller, 190 Va.

at 165 (quoting Holman, 1 Cowp. at 343, 98 Eng. Rep. at 1121), thus “contributed directly and

proximately to cause” its injury, S. Ry. Co., 115 Va. at 246 (citation omitted), the law firm should

not have been compensated for that loss.

14 Although neither party mentioned the ex turpi causa doctrine, their respective reliance on the law firm’s violations of the Virginia Rules of Professional Conduct suffices to put the issue before the Court. Both Tyler and the Commonwealth characterize the VSB costs as arising out of the law firm’s ethical violations: Tyler says that the law firm was “sanctioned” for its managing partner’s “own violations of various ethical rules,” Tyler Br. 6; and the Commonwealth cites the law firm’s “misconduct” in violating Rules 1.15 and 5.3 but says that the violation “directly relates to Tyler’s embezzlement,” Commonwealth Br. 16. - 31 - Because the ex turpi causa doctrine best explains why the law firm’s violation of its

professional duties, not Tyler’s embezzlement, is the legal cause of the VSB costs, I concur in

the judgment denying restitution for those costs.

- 32 -