In the recent decision of Dombrowski v. Bulson, 2012 NY Slip Op. 04203 [May 31, 2012], the New York State Court of Appeals dealt with an open issue in the area of legal malpractice, namely: whether a former client may recover nonpecuniary damages in a law suit brought against his attorney for legal malpractice arising from the client’s alleged wrongful incarceration.
Client’s conviction for attempted rape and sexual abuse
In this legal malpractice case, the plaintiff was convicted in 2000, after a jury trial, of attempted rape, sexual abuse and endangering the welfare of a child. The plaintiff brought a motion pursuant to Criminal Procedure Law Section 440.10 to vacate his conviction, arguing that he had received ineffective assistance of counsel. The state court judge denied the motion and determined that the plaintiff’s former criminal defense attorney provided meaningful representation in the case.
Subsequently, the plaintiff sought a writ of habeas corpus in federal court. He indicated numerous deficiencies of his former attorney, including failing to investigate or present evidence concerning a defense, interview potential witnesses and cross-examine the victim regarding discrepancies in her testimony. After a hearing, the federal Magistrate found errors by the former defense counsel which made it difficult for the jury to make a reliable assessment of the critical issue of the victim’s credibility. Accordingly, the petition was conditionally granted unless further criminal proceedings were brought against the plaintiff. The plaintiff was not reprosecuted and the indictment was then dismissed.
Commencement of legal malpractice case
The plaintiff then brought a legal malpractice action against his former attorney, alleging that he suffered damages as a result of the attorney’s malpractice. In his complaint, the plaintiff indicated that he was incarcerated more than five years and was then serving for a period of postrelease supervision, and sought damages against the attorney for the time spent.
The Supreme Court granted the defendant attorney’s motion for summary judgment and dismissed the complaint, finding that the plaintiff’s receipt of Social Security disability benefits while he was incarcerated precluded the claim for pecuniary damages and that damages for any nonpecuniary losses were not permitted in the action for legal malpractice. The Appellate Division modified and reinstated that portion of the complaint which sought nonpecuniary damages. The Appellate Division held that, while nonpecuniary losses were not available for legal malpractice claims where the underlying action was a civil matter, an individual who had been wrongfully convicted as a result of legal malpractice in a criminal matter could recover compensatory damages for loss of liberty and other losses resultant from his imprisonment.
Standard for a legal malpractice case
In order to recover damages in a legal malpractice action, a plaintiff must establish “that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages.” Quoting McCoy v. Feinman, 99 NY2d 295, 301 . For malpractice actions arising from allegations of negligent representation in a criminal matter, a plaintiff must have at least a colorable claim of actual innocence – that the conviction would have not resulted but for the attorney’s negligent representation. See, Britt v. Legal Aid Society, 95 NY2d 443 .
Rejection of claim for non pecuniary damages
Generally, New York courts have rejected claims by plaintiffs in legal malpractice actions against their former attorneys arising out of representation in civil proceedings. See, e.g. Dirito v. Stanley, 203 AD2d 903 [4 Dept. 1994]; Wolkstein v. Morgenstern, 275 AD2d 635 [1 Dept. 2000]. As held in various cases, there can be no recovery, other than for pecuniary losses, for emotional or psychological injury in a legal malpractice action.
In the case of Dombrowski v. Bulson, the plaintiff argued (and the Appellate Division acknowledged) that limiting recovery to pecuniary damages in cases of malpractice arising out of criminal matters would likely deny the claimants any meaningful relief. However, the Court of Appeals determined that there was no compelling reason to depart from the established rule limiting recovery in legal malpractice actions to pecuniary damages. Allowing claimants to recover nonpecuniary damages (which would be damages for items which cannot be measured on a formal monetary scale, such as pain and suffering or social isolation) could have devastating consequences on the criminal justice system. As the court stated, “Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions.”
Accordingly, the Court of Appeals held that a plaintiff suing his former defense attorney cannot claim nonpecuniary damages in a legal malpractice action.