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Legal Malpractice: Not Just For Monetary Loss

"An attorney who commits malpractice is liable to his client for any reasonably foreseeable loss caused by his negligence including emotional distress resulting from the loss of liberty."

In Lawson v. Nugent, Plaintiff,  Gordon F. Lawson, and four co-defendants were indicted for the robbery of the Atlantic City Post Office. 702 F. Supp. 91 (D.N.J. 1988). Plaintiff, retained Defendant Charles F. Nugent as defense counsel. On September 27, 1977, on the advice of defendant, plaintiff pleaded guilty to all three counts of the indictment including two aggravated counts which charged him with knowledge of the use of a weapon during the commission of the crime.

Lawson alleges that Nugent permitted and recommended the guilty plea without inquiring whether any factual basis existed for the plea, particularly with regard to the use of weapons. Eventually, Lawson was sentenced to a 25-year prison term in a maximum security penitentiary. While in prison, Lawson retained other legal counsel to seek reduction of his sentence. The court granted Lawson's motion to vacate his guilty plea to the two aggravated counts of the indictment. Lawson was released from prison two weeks later, after serving approximately five years in prison.

Upon release, plaintiff brought a legal malpractice suit against Nugent. Lawson alleged that, but for the defendant's negligent legal representation, he would have served a maximum of only 40 months in prison. The plaintiff sought damages for emotional distress as a result of the anguish he suffered for the additional 20 months he spent in prison, allegedly, as a result of his attorney's ineffective representation.

The court distinguished between a loss of liberty and loss of economic interest. Typically, legal malpractice actions revolve around a loss of economic interest. Courts generally do not allow emotional distress claims when it is just loss of economic interest at stake in a legal malpractice case.

The court said specifically that the client must prove:

1) the existence of some egregious or extraordinary circumstance; and

2) the allegedly negligent attorney was retained to protect something other the plaintiff's economic interests.

The Court eventually held that a criminal defendant can recover damages for emotional distress from his attorney in a legal malpractice action based on the attorney's representation in a criminal proceeding. It found that if a client is deprived of his freedom, it could potentially cause an individual to suffer mental distress. Therefore, the client could go forward with his claim of emotional distress due to the extra twenty months he spent in a maximum-security penitentiary allegedly due to negligent representation because of the attorney-client privilege.

Ultimately, the could held that in this particular case, Lawson should be allowed to prove damages for emotional distress attributable to the extra twenty months of confinement in a maximum security penitentiary.

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