9-5 Punitive Damages

• Jurisdiction: United States

9-5 Punitive Damages

An attorney who gives improper or erroneous advice to a client who suffers damage as a result may be subject to a malpractice action for compensatory damages. However, such negligence, if it exists, and even if it is gross, will not justify an award of punitive damages absent the necessary allegations and proof of wantonness or reckless indifference.³⁹

Thus, for example, punitive damages have been held to be unavailable for merely listing oneself as proficient in the area of law that leads to the malpractice action,⁴⁰ or for failing to file a security interest with the Secretary of State.⁴¹

Nevertheless, it is possible to recover punitive damages with the right facts pled properly.⁴² In De Pantosa Saenz v. Rigau & Rigau, P.A.,⁴³ the former client sought punitive damages by alleging fraud in the sale of certain real estate. The court stated, "[M]oreover, the plaintiff seeks punitive damages against Mr. Rigau. Assuming the plaintiff can establish facts warranting punitive damages, the previously received remedy of rescission would not bar an additional award of punitive damages."⁴⁴

Punitive damages were awarded against the attorneys in Stinson v. Feminist Women's Health Center, Inc.⁴⁵ The appellate court found the trial judge properly awarded punitive damages because the lawyers' behavior was "egregious," "self-serving," and "unconscionable."⁴⁶ But in Medel v. Republic National Bank of Miami,⁴⁷ the availability of punitive damages was determined to be an issue for trial rather than summary judgment.⁴⁸

Applying Florida law, federal courts have awarded punitive damages where circumstances justified doing so.⁴⁹

The appropriateness of the amount of damages awarded against a law firm for punitive damages was at issue in Young v. Becker & Poliakoff, P.A.⁵⁰ The aggrieved client was seeking to reverse the trial court's remittitur, which reduced a $4.5 million punitive damage award to $2 million. In considering the matter, the Fourth District Court of Appeal took note of the constitutional due process requirements that govern punitive damage awards:

(1) "the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct;" (2) the award "bears some relationship to the defendant's ability to pay and does not result in economic castigation or bankruptcy to the defendant;" and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded.⁵¹

After reviewing the evidence of the law firm's finances, the court upheld the remittitur because the amount awarded by the jury did not satisfy the second constitutional due process requirement.⁵² In contrast, the $2 million figure was held not to be excessive.⁵³

A quite distinct issue is whether a lawyer can be held liable for the punitive damages that his or her client would have been awarded in the underlying case had the lawyer not committed malpractice.

In Herendeen v. Mandelbaum,⁵⁴ the defendant lawyer argued that, as a matter of public policy, the bankruptcy trustee should not be allowed to pursue a claim for the punitive damages that had been assessed against the debtor due to the lawyer's alleged...