Non-Economic Damages in Legal Malpractice Litigation

Plaintiff sues defendant attorneys for legal malpractice.  Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys.  Are these non-economic damage claims permissible?

In New York, there may not be claims for non-economic damages arising from legal malpractice.  When one says A"arising" from legal malpractice, it is correct to say that the behavior of the attorneys cannot give rise to emotional damages.  Of course, if the legal malpractice took place in , say, a personal injury action, then the emotional damages which might have been collectable there are part of the overall legal malpractice damages, as they are now economic, and must be calculated as if in a hypothetical judgment that was never obtained.

In Taylor v Paskoff & Tamber, LLP ;2010 NY Slip Op 20405 ;Decided on October 4, 2010 ;Supreme Court, New York County ;Stallman, J.  we see his decision on an offshoot of this issue.  ""Emotional damages are not recoverable in a legal malpractice action." Kaiser v Van Houten, 12 AD3d 1012, 1014 (3rdDept 2004); Risman v Leader, 256 AD2d 1245, 1245 (4th Dept 1998); Dirito v Stanley, 203 AD2d 903 (4th Dept 1994). " 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." Wolkstein v Morgenstern, 275 AD2d 635, 637 (1st Dept 2000).

Plaintiffs argue that emotional distress and pain and suffering should be recoverable where the legal malpractice concerns adoption and custody cases. Plaintiffs concede that New York courts have never recognized such an exception, but assert that other states have permitted recovery of emotional damages in legal malpractice actions, citing Kohn v Schiappa (21 NJ Super 235 [1995]), McAvoy v Helikson (277 OR 781 [1977]). Plaintiffs also cite Douglas v Delp (987 SW2d 879 [1999]), which reviewed the cases that have addressed the issue and held that "when a plaintiff's mental [*3]anguish is a consequence of economic losses caused by an attorney's negligence, the plaintiff may not recover damages for that mental anguish." Douglas, 987 SW2d at 885.

The Court finds unpersuasive the out-of-state cases that plaintiffs cite. "This Court's holding in Wolkstein v Morgenstern, (supra), limiting victims of legal malpractice to pecuniary damages, although issued in the context of a claim of legal malpractice in a civil action, amounts to a policy-based ruling not limited to that context." Wilson v City of New York, 294 AD2d 290, 292-293 (1st Dept 2002). Given that plaintiffs conceded that no reported New York case has permitted recovery of emotional damages in a legal malpractice action involving representation in adoption or custody matters, the Court sees no reason to depart from well-established appellate authority. Plaintiffs have not their burden of convincing the Court to depart from well-settled principles of New York law. Accordingly, the Court adheres to its prior rationale, decision, and order, which dismissed defendants' tenth affirmative defense.

That is not to say that the measure of damages for pecuniary loss in a legal malpractice action could not, as a matter of law, include the amount of pain and suffering that a plaintiff would have recovered in a negligence action but for the malpractice of the attorney representing that plaintiff in the underlying negligence action. Such non-economic loss may be sought in certain kinds of legal malpractice actions unlike that alleged here. For example, should an attorney's malpractice vitiate a plaintiff's opportunity to pursue an underlying action in which non-economic loss might have been sought, that non-economic loss would be an element of the damages of economic loss attributable to the attorney's wrongdoing sought to recovered in the legal malpractice action. Here, there was no underlying tort litigation that the attorney allegedly mishandled.


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