Client Cannot Sue His Lawyer for Nonpecuniary Damages

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 [2002]. 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 [2000].

Rejection of claim for nonpecuniary 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.




Contact me if you have questions.

Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
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copyr. 2012 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Proximate Cause and Attorney Malpractice

Proximate Cause and Attorney Malpractice


There is a legal concept in personal injury law called "proximate cause." The big question in holding someone liable for the injuries of another is: "Was the defendant’s action the proximate cause of the injury sustained by the plaintiff?" In other words, was it the defendant’s fault or not.


In analyzing that question, various States have created other legal concepts, such as contributory negligence, comparative negligence, and strict liability. These concepts help tailor the causation element to the facts of the case. For instance, were the actions of the plaintiff a contributing factor to the injury sustained by him - by his failure to wear a seat-belt, did the plaintiff cause his own injuries, even if the defendant’s car hit his car.


In Barnett v. Schwartz, the Appellate Division – Second Department had to grapple with an issue concerning causation. Specifically, in a legal malpractice case, must the plaintiff prove that the defendant-attorney’s negligence was the sole proximate cause of the damages sustained by him?


In the case, the defendants argued that the trial court erred when it charged the jury that the plaintiffs needed to prove only that the defendants’ negligence was a proximate cause (i.e., a "substantial" cause) of damages. The defendants claimed that the trial court should have instead charged the jury that the plaintiffs needed to prove that "but for" such negligence they would not have sustained damages. The defendants argued that the "less rigorous standard" of causation charged by the court warranted reversal and a new trial.


The elements to be proved in a legal malpractice action have been subjected to various formulations. In the opinion, the court noted:


Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Soc., 95 NY2d 443, 446; see e.g. Kleeman vRheingold, 81 NY2d 270; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407; Cohen v Wallace & Minchenberg, 39 AD3d 691; Cummings v Donovan, 36 AD3d 648; Kotzian v McCarthy, 36 AD3d 863), while others hold that it must be "a" proximate cause of damages (Bauza v Livington,40 AD3d 791, 793; see e.g. Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725; Terio v Spodek, 25 AD3d 781; Pistilli v Gandin, 10 AD3d 353). There are also cases from this court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409; Kotzian v McCarthy, 36 AD3d 863; Moran v McCarthy, Safrath &Carbone, P.C., 31 AD3d 725). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g., Leder v Spiegel, 9 NY3d 836; Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 NY3d 438; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008; Carmel v Lunney, 70 NY2d 169). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages.


Neither party cited, and research did not reveal, any case from the Court of Appeals or any other court expressly holding that "but for" causation was synonymous with sole proximate cause, or that it requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Further, there was no case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation.


As mentioned in the decision, The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (NY Pattern Jury Instruction 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney’s negligence need only be "a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (NY PJI 2:152, p 872, 880; NY PJI 2:70). As stated: "Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause."


The Second Department decision in Barnett v. Schwartz gave an instructive lesson concerning proximate cause in a legal malpractice case:

For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action. Stated otherwise, if the plaintiff-client cannot prove that it would have prevailed in the underlying action, the defendant-attorney’s negligence was not a proximate cause of any damages arising from the loss of the same. Further, there are several decisions from this court requiring the plaintiff-client to prove both that the defendant-attorney’s negligence was "a" proximate cause of damages, and that "but for" such negligence it would have prevailed in the underlying action or would not have incurred damages (see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725; Terio v Spodek,25 AD3d 781). Clearly, these decisions do not provide for two different measures of causation in the same standard. Indeed, it would appear that the "but for" language, which grew out of the lawsuit-within-a-lawsuit scenario (see Carmel v Lunney, 70 NY2d 169; N. A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730), is merely a recognition of the factual particularities of proving proximate cause and damages in such an action. When applied in a case involving negligent legal advice (i.e., a case where there is no underlying cause of action to lose), it would appear that the "but for" formulation is merely a recognition of the factual complexities that may attend proving proximate cause when the legal advice was merely one of a myriad of factors that contributed to the plaintiff-client’s ultimate decision or course of action (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).

Finally, we note, a conclusion that the "but for" formulation of causation requires proof that the negligence of the defendant-attorney was the sole proximate cause of damages is contrary to the holding of the Court of Appeals that the contributory negligence of the plaintiff-client may be pleaded as an affirmative defense (see Arnav Indus. Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300; see also Boudreau v Ivanov, 154 AD2d 638).

In determining that the legal malpractice case should continue and not be dismissed, the Second Department simply stated:


"In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages."

Copyright 2008 and 2011
by Richard A. Klass, Esq.

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Proximate Cause and Attorney Malpractice


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Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.


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Contact me if you have questions.


Sincerely yours,
Richard A. Klass, Esq.
Your Court Street Lawyer
-----------
copyr. 2011 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-mail to richklass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.