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LawCrossing Legal Daily News Feature
Attorney Malpractice Damages Do Not Extend to Claims for Loss of Liberty 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.
06/04/12 In 2009, the District Court for the Western District The ruling came in the case of Thomas Dombrowski,
of New York, granted him a writ of habeas corpus.
who served time for attempted rape of his daughter
The court agreed to Dombrowski’s submissions that
until the conviction was overturned. Dombrowski spent
the attorney Bulson had failed to cross-examine
more than 5 years in prison devastating his life and
the accuser, Dombrowski’s daughter, sufficiently
career.
and satisfactorily. Prosecutors declined a retrial and Dombrowski’s indictment was dismissed.
Upon release, Dombrowski sued his defense lawyer, Raymond Bulson, for loss of liberty. The lower court
Later, Dombrowski brought a lawsuit against Bulson in
ruled in favor of Dombrowski, but the Appeals Court
the State Supreme Court for his loss of liberty. Justice
overruled. The logic of the Appeals Court was that
John Michalek of the State Supreme Court granted
there was “no precedent” of such an
Bulson’s motion for summary judgment and dismissed
intangible claim in a malpractice suit for “loss of
the malpractice suit.
liberty.” Later the Appellate Division, Fourth Department, Chief Judge Jonathan Lippman wrote for the court
modified the summary judgment and held that such
that “We see no compelling reason to depart from the
damages are permissible in criminal cases where the
established rule limiting recovery in legal malpractice
losses suffered by the defendant were a direct result of
actions to pecuniary damages.”
the attorney’s malpractice or negligence.
The case is of interest since Drombowski had been
The Fourth Department noted, “In our view, a cause
crying of the attorney’s incompetence since the time of
of action for criminal legal malpractice is analogous
his first trial.
to cause of action for false arrest and malicious
In 2000, Dombrowski was convicted of attempted rape,
prosecution … both of which allow recovery for the
sexual abuse and endangering the welfare of a child.
plaintiff’s loss of liberty resulting from the plaintiff’s
At the time, he moved to vacate the conviction on the
wrongful incarceration.”
grounds that Bulson, the attorney, had not provided effective counsel. But the trial court refused to hear his
However, on Thursday, the Court of Appeals disagreed
plea and dismissed his motion.
holding that both false arrest and malicious prosecution are deliberate acts, but ineffective assistance of a
Dombrowski was sent to jail in 2001 and released in
counsel is not.
2006 and began to serve a period on probation.
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THE LARGEST COLLECTION OF LEGAL JOBS ON EARTH
LawCrossing Legal Daily News Feature
What happened to the entire law of negligence?
significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense
The court wrote “It makes sense that the scope of
bar to represent indigent accused.” And since there is
recovery for deliberate torts is broader than for torts
no “precedent” the cause of Dombrowski cannot be
based on the failure to exercise skill or care.”
entertained.
However, apparently the court was more concerned
The case is Thomas Dombrowski v. Raymond Bulson,
with the effects of the judgment on the legal
New York State Court of Appeals No. 83.
fraternity than justice being served and wrote, “Most
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