Recently, the Kentucky Justice Association asked us to write an article for the Advocate on legal malpractice. We choose to write on the issue of whether a Kentucky legal malpractice plaintiff can recover lost punitive damages in the legal malpractice lawsuit against the attorney.
The debate centers around whether these damages are recoverable since the purpose of punitive damages is to punish the wrongdoer. Defendants take the posistion that because the punitive damages in the underlying case (the one the lawyer malpracticed) were meant to punish the original wrongdoer, forcing the lawyer to pay them does not punish the orignial wrongoer. This article explorers that concept and concludes that the fundamental purpose of KRS 411.165 as well as Kentucky punitive damage law will only be served if lost punitive damages are recoverable against a negligent attorney.