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Why Are Lost Punitive Damages Not Awarded in Legal Malpractice Actions?

PLAINTIFFS IN MALPRACTICE ACTIONS CANNOT GENERALLY RECOVER “LOST PUNITIVE DAMAGES” FROM NEGLIGENT COUNSEL.

A client who fails to recover punitive damages in a legal action–even as a result of attorney negligence–generally cannot claim the “lost” punitive damages as part of the compensatory damages claimed in a legal malpractice action. While plaintiffs may consider these lost punitive damages part of the harm they suffered as a result of their former lawyer’s misconduct, policy reasons prevent the court from awarding them as compensatory damages in a legal malpractice case.

WHY ARE LOST PUNITIVE DAMAGES NOT RECOVERABLE AS COMPENSATORY DAMAGES IN MALPRACTICE CASES?

Punitive damages awards exist to punish wrongdoers and to deter similar future misconduct by the defendant and by others who find themselves in a similar position or situation. Allowing plaintiffs to recover lost punitive damages from a negligent lawyer would not serve either of these purposes. The original wrongdoer would not be punished, and the damages award would not deter others from committing similar wrongful acts in the future. If anything, it might make wrongdoers believe that they have a chance to pass punitive damages liability off on their opponents’ negligent counsel.

Moreover, attempting to calculate the value of punitive damages a court might have awarded in the absence of a lawyer’s malpractice requires too much speculation, and public policy disfavors speculative damages of this nature.

Finally, if former clients could recover lost punitive damages awards as compensatory damages in legal malpractice actions, lawyers would have to think twice about settling cases (or advising clients to accept a settlement offer) where punitive damages could potentially be awarded if the case went to trial. A subsequent legal malpractice action would create far more exposure if lawyers could be held liable for the client’s “lost” punitive damages award–especially if the client could claim the lawyer’s advice to settle was malpractice, and “resulted” in loss of the punitive damages claim. While advising someone to accept a settlement, without more, is not malpractice, allowing recovery of lost punitive damages in subsequent malpractice actions would have a chilling effect on attorneys’ willingness to negotiate or advise settlement options.

PUNITIVE DAMAGES MAY BE AWARDED IN MALPRACTICE CASES IF THE NEGLIGENT LAWYER’S OWN CONDUCT MERITS A PUNITIVE DAMAGES AWARD.

Although “lost” punitive damages may not be recovered as compensatory damages, if the negligent lawyer engaged in “oppression, fraud, or malice” against the (former) client, the attorney may be directly liable for punitive damages. However, in this situation, the plaintiff is not recovering punitive damages that would have been received in the underlying case, but for the lawyer’s malpractice–the punitive damages are assessed directly against the negligent lawyer on account of his or her own egregiously wrongful conduct.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Malpractice (professional negligence) claims are complicated and fact-dependent. If you believe you have a claim against an attorney who represented you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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