Legal Malpractice

The Extraordinary and Rare Criminal Defense Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Criminal defense legal malpractice cases are so rare that the 4th Department found but a single case to discuss in the decision in Dombrowski v Bulson  ;2010 NY Slip Op 09625 ; Decided on December 30, 2010 ;Appellate Division, Fourth Department .  Plaintiff was convicted, lost on appeal, argued ineffective assistance of counsel, lost, tried to take an appeal to the AD, lost, finally got to US District Court and gained habeas relief.  He was not retried, and the case was dismissed.
 Dombrowski discusses two aspects of damages in legal malpractice cases.  One is whether one might receive compensation for the incarceration and whether one may receive compensation for lost wages.  Plaintiff won on the first prong, which is the exception to the rule that one may not obtain non-pecuniary damages in legal malpractice.

"It is well settled that non pecuniary damages are not recoverable in a legal malpractice action involving the negligence of an attorney in a civil matter (see e.g. Wolkstein v Morgenstern, 275 AD2d 635, 637; Dirito v Stanley, 203 AD2d 903). Here, however, the issue before us is whether that rule should also apply to legal malpractice actions where the underlying matter is criminal rather than civil in nature. The only New York appellate court decision on point is that of the First Department in Wilson v City of New York (294 AD2d 290), which held that recovery of nonpecuniary damages is not permitted. In our view, the reasoning of the First Department in Wilson is not persuasive, and we therefore decline to follow the holding in Wilson.

"It is fundamental to our common-law system that one may seek redress for every substantial wrong. The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his [or her] misconduct' " (Battalla v State of New York, 10 NY2d 237, 240; see Derby v Prewitt, 12 NY2d 100, 105-106). Where emotional or other nonpecuniary loss is a direct result of a defendant's breach of duty, a plaintiff may recover damages for such loss (see generally Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697, 699; Kennedy v McKesson Co., 58 NY2d 500, 504-506). The risk of imprisonment is a direct result of attorney malpractice in a criminal case and, indeed, it is the primary risk involved in most criminal cases. In our view, a cause of action for criminal legal malpractice is analogous to causes of action for false arrest and malicious prosecution, both of which allow recovery for the plaintiff's loss of liberty resulting from the plaintiff's wrongful incarceration (see Strader v Ashley, 61 AD3d 1244, lv dismissed 13 NY3d 756; Lynch v County of Nassau, 278 AD2d 205; see generally Britt v Legal Aid Socy., 95 NY2d 443, 448). We thus conclude that a plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her attorney in a criminal case may recover compensatory damages for the actual injury sustained, i.e., loss of liberty, and any consequent emotional injuries or other losses directly attributable to his or her imprisonment. "

Full post as published by New York Attorney Malpractice Blog on December 31, 2010 (boomark / email).