January 22, 2019 Top Story

Courts Split on Punitive Damages Recovery in Legal Malpractice Cases

Courts weigh competing policy considerations underlying compensatory and punitive damages

By James A. Sweeney

In some states, unless barred by statute, a plaintiff in a legal malpractice action may seek to include as damages the punitive damages that would have been awarded if not for the lawyer’s negligent representation in the underlying case.

Courts, however, have split on the issue. Where some find that making the injured party whole is the paramount consideration and that punitive damages should be recovered against the lawyer, others hold that the policy considerations underlying punitive damages—punishment and deterrence—do not apply against the lawyer. ABA Section of Litigation leaders say there are practical as well as policy problems with allowing the recovery of punitive damages in a legal malpractice action.

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