NY court limits damages vs. defense lawyers

ALBANY -- New York's top court Thursday rejected some malpractice damage claims against defense lawyers by the people they represent unsuccessfully, concluding that allowing them could have "devastating consequences" for the criminal justice system.

The Court of Appeals unanimously said allowing damages for lost liberty and emotional distress would have "a chilling effect" on an already strapped defense bar in representing poor defendants and give them an incentive to not help with appeals.

The case stems from Thomas Dombrowski's convictions for attempted rape, sexual abuse and child endangerment in Allegany County. He spent five years in jail. A federal judge vacated his conviction, ruling that errors by defense lawyer Raymond Bulson made it hard for the jury to assess the accuser's credibility.

Dombrowski said his lawyer failed to investigate or present evidence for his defense, interview some potential witnesses or cross-examine the alleged victim about discrepancies in her testimony.

"Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system," Chief Judge Jonathan Lippman wrote. "Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions."

The court said defendants can still sue for monetary damages like lost wages, but a lower court judge notes that in this case Dombrowski's receipt of Social Security disability benefits while jailed precluded his claim for monetary damages.

Calls to the attorneys for Dombrowski and Bulson were not immediately returned yesterday.