There has long been a debate over the extent to which the seminal criminal malpractice case in Pennsylvania, Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993), applies to civil legal malpractice actions. Bailey, held that for a breach of contract claim against a lawyer, damages “will be limited to the amount actually paid for the services plus statutory interest.” Although Bailey arose in the context of an underlying criminal action, the courts in both Massullo v. Hamburg, Rubin, Mullin, Maxwell & Lupin, P.C., 1999 U.S. Dist. LEXIS 7177 (1999) and Green v. Altman, 2004 U.S. Dist. LEXIS 19145 (2004); and Nuyannes v. Thompson, No. 11-2029, 2012 WL 1033912, at *11 (E.D. Pa. Mar. 27, 2012) extended the ruling of Bailey regarding damages to civil matters.
In December, a panel of the Superior Court reversed course in Coleman v. Duane Morris, 2012 Pa. Super. 281, holding the Bailey decision would not extend outside of the criminal context. Last week, in an opinion titled Lodato v. Silvestro, U.S. District Judge Joel Slomsky of the Eastern District of Pennsylvania relied upon the opinion in Coleman v. Duane Morris to restrict the Bailey holding to cases arising out of underlying criminal matters. Judge Slomsky’s opinion recognizes there is a significant split between the courts both in Pennsylvania and federal courts utilizing Pennsylvania law. This issue is far from settled, and cases will likely be decided both ways until the Pennsylvania Supreme Court addresses the issue head-on.–Josh J.T. Byrne, Esquire