Attorney Malpractice Damages Do Not Extend to Claims for Loss of Liberty

06/04/12

On last Thursday, in a unanimous decision, New York's Court of Appeals ruled that individuals who have been wrongfully incarcerated may not collect damages for loss of liberty in any malpractice suit against their attorneys.


The ruling came in the case of Thomas Dombrowski, who served time for attempted rape of his daughter until the conviction was overturned. Dombrowski spent more than 5 years in prison devastating his life and career.

Upon release, Dombrowski sued his defense lawyer, Raymond Bulson, for loss of liberty. The lower court ruled in favor of Dombrowski, but the Appeals Court overruled. The logic of the Appeals Court was that there was “no precedent” of such an
intangible claim in a malpractice suit for “loss of liberty.”

Chief Judge Jonathan Lippman wrote for the court that “We see no compelling reason to depart from the established rule limiting recovery in legal malpractice actions to pecuniary damages.”

The case is of interest since Drombowski had been crying of the attorney's incompetence since the time of his first trial.
In 2000, Dombrowski was convicted of attempted rape, sexual abuse and endangering the welfare of a child. At the time, he moved to vacate the conviction on the grounds that Bulson, the attorney, had not provided effective counsel. But the trial court refused to hear his plea and dismissed his motion.

Dombrowski was sent to jail in 2001 and released in 2006 and began to serve a period on probation.

In 2009, the District Court for the Western District of New York, granted him a writ of habeas corpus. The court agreed to Dombrowski's submissions that the attorney Bulson had failed to cross-examine the accuser, Dombrowski's daughter, sufficiently and satisfactorily. Prosecutors declined a retrial and Dombrowski's indictment was dismissed.

Later, Dombrowski brought a lawsuit against Bulson in the State Supreme Court for his loss of liberty. Justice John Michalek of the State Supreme Court granted Bulson's motion for summary judgment and dismissed the malpractice suit.

Later the Appellate Division, Fourth Department, modified the summary judgment and held that such damages are permissible in criminal cases where the losses suffered by the defendant were a direct result of the attorney's malpractice or negligence.

The Fourth Department noted, “In our view, a cause of action for criminal legal malpractice is analogous to cause 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.”

However, on Thursday, the Court of Appeals disagreed holding that both false arrest and malicious prosecution are deliberate acts, but ineffective assistance of a counsel is not.

What happened to the entire law of negligence?

The court wrote “It makes sense that the scope of recovery for deliberate torts is broader than for torts based on the failure to exercise skill or care.”

However, apparently the court was more concerned with the effects of the judgment on the legal fraternity than justice being served and wrote, “Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused.” And since there is no “precedent” the cause of Dombrowski cannot be entertained.

The case is Thomas Dombrowski v. Raymond Bulson, New York State Court of Appeals No. 83.