About a month ago, the New York Appellate Division, Fourth Department, issued a very short opinion reaffirming the view that a plaintiff cannot recover non-pecuniary damages in a legal malpractice action. According to the court, New York courts have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to non-pecuniary damages arising out of representation in civil proceedings. Here, the plaintiff argued the case was different because his claim involved a malpractice on the part of a criminal defense lawyer. The plaintiff argued that, based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action -- the loss of liberty attendant to a period of incarceration -- harm that is non-pecuniary in nature.
Thus, assuming the statement about the state of the law in legal malpractice in civil cases is correct, a decision in favor of the plaintiff in this case would have meant that plaintiffs suing criminal defense lawyers for malpractice would have the right to recover for a certain category of damages that plaintiffs suing for malpractice in civil cases wouldn't.
The court did not agree with the plaintiff and held that plaintiffs in malpractice actions are not entitled to anything but pecuniary damages.
The court concluded that "[a]llowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. 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."
I have not researched the question to see what is the prevailing view on
this in other jurisdictions, but I do not find this reasoning
convincing. I understand the concern about a chilling effect, and the desire to provide incentives for attorneys to help indigent defendants. But I don't understand the need to limit the possible recovery of a plaintiff that has the right to recovery.
The burden of proof in any malpractice case is high and in criminal cases it is even higher since the former criminal defendant has to show actual innocence (in most jurisdictions including NY - something the court gets wrong in the opinion, by the way). This means the likelihood that a plaintiff would be successful in a malpractice case of this sort is low, and if the case is such that this is possible it probably involves clear negligence on the part of the lawyer. Why deny recovery to a deserving plaintiff who has clearly suffered an injury caused by a negligent lawyer?
The case is called Dombrowski v. Bulson and the court's opinion can be found here.