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In a unanimous decision last Thursday, the New York Court of appeals ruled that a plaintiff suing his former defense attorney for legal malpractice, cannot recover non-pecuniary damages.  The case of Dombrowski v. Bulson, reaffirms in the criminal context the general rule in New York that a cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss, so there can be no recovery for emotional or psychological injury, or in the criminal case, loss of liberty.  The court stated:

Allowing 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.

This is a far different measure of damages and view of policy than is currently seen in either Pennsylvania or New Jersey, and a reminder that the law with respect to legal malpractice (especially in the criminal defense context) vary greatly from state to state.

-Josh J.T. Byrne, Esquire