Is It Outrageous? Does an Attorney’s Negligent Conduct Result in Damages For Emotional Distress in a Legal Malpractice Lawsuit?

Most American jurisdictions do not allow plaintiffs suing for legal malpractice to recover emotional distress damages in addition to their monetary losses. However, plaintiffs will frequently try to circumvent this general rule by adding separate and additional causes of action for either intentional, or negligent infliction of emotional distress as part of their legal malpractice lawsuit. The factual basis for the emotional distress claims is the same set of circumstances that constitutes the alleged legal malpractice.

Plaintiffs are rarely successful in their attempt to thwart this general rule. This is so because courts have dismissed the additional counts sounding in emotional distress because the plaintiffs cannot make out a prima facie case when they forge their claims from the very same facts used to support the legal malpractice count. This is the case for Connecticut, New York and New Jersey that all have case law holding emotional distress damages are not recoverable in legal malpractice actions.

Connecticut follows the majority rule and does not allow for emotional distress damages as part of a legal malpractice claim, unless the plaintiff can present a viable claim for either intentional or negligent infliction of emotional distress as separate and distinct causes of action. In cases where the plaintiff includes additional counts for emotional distress in the legal malpractice lawsuit, the defendant attorney usually challenges the legal sufficiency of those claims in a pre-answer motion to strike. While there is no Connecticut supreme or appellate authority on this issue, the trial court considers whether the claim for emotional distress stands alone as a separate count, even though it is based on factual allegations of the attorney’s negligence. Borla v. Guion, Stevens, & Ryback, Conn. Super. LEXIS 2670 (October 19, 2011).

In order for the attorney’s negligent conduct to constitute intentional infliction of emotional distress, it must be “extreme and outrageous,” exceed all boundaries tolerated by a decent society and be calculated to cause mental distress of a severe kind. Stacuna v. Schaffer, 122 Conn. App. 484 (2010). The defendant attorney must have known or should have known that emotional distress would result from his conduct. The Connecticut trial courts almost always strike these emotional distress counts because the attorney’s negligent conduct does not meet the high standard required to make out the prima facie case. Pipkin v. Glenn, Conn. Super LEXIS 2589 (September 25, 2009). For example, a mere breach of contract by the attorney is not the type of conduct that can support a claim for intentional infliction of emotional distress. Noon v. Brencher, Conn. Super. LEXIS 1522 (June 12, 2012) Allegations of fraud against an attorney do not amount to extreme and outrageous conduct, nor is the attorney’s failure to notify the clients about a pending action. Flamengo v. Burgdorf, Conn. Super LEXIS 3343 (December 19, 2007)(and citations therein). Even allegations that an attorney pressured or coerced the client to accept a settlement of a custody dispute does not meet the standard required for intentional infliction of emotional distress.

Applying similar reasoning, Connecticut courts have also stricken negligent infliction of emotional distress claims. The legal standard for meeting a prima facie case for negligent infliction of emotional distress is lower than one for intentional infliction of emotional distress. Negligent infliction of emotional distress requires the conduct of the actor to create an unreasonable risk of causing emotional distress. Parsons v. United Technologies Corp., 243 Conn. 66 (1997). However, the conduct must also result in bodily harm. Id; Giovanelli v. Cantor, Floman, Gross, Kelly & Sacramone, 44 Conn. L. Rptr 802 (2008). The courts examining the viability of a negligent infliction of emotional distress claims note that the attorney’s negligent conduct rarely results in any physical harm.

Like Connecticut, the courts in New York have a general prohibition against allowing a plaintiff to recover damages for emotional distress in legal malpractice cases, and generally reject all such claims. Dirito v. Stanley, 203 AD2d 903 (4th Dept. 1994); Taylor v. Paskoff & Tambler, LLP 908 N.Y.S.2d 861 (N.Y. Sup. Ct. 2010). Very recently, the New York Court of Appeals rejected a claim for nonpecuniary damages where the attorney’s malpractice in a criminal matter resulted in a conviction.

Dombrowski v. Bulson, 212 N.Y. LEXIS 1244 NY Slip Op 4203 (Court of Appeals of New York). After his motion to vacate his conviction was denied, he then brought a writ of habeas corpus. There, the plaintiff urged that the defendant attorney failed to investigate or present evidence concerning an allegedly meritorious defense, failed to interview certain potential witnesses, and failed to cross-examine the victim regarding discrepancies in his testimony. An evidentiary hearing was held at which the defendant attorney explained the reasoning behind his professional decisions regarding the conduct of the trial. The magistrate found errors by the defense counsel made it difficult for the jury to make a reliable assessment of the critical issue of the victim’s credibility. The prosecution did not re-prosecute the plaintiff and the indictment was dismissed. Even though the attorney’s malpractice resulted in a loss of liberty, the Appellate Division did not depart from the general prohibition against awarding emotional distress damages.

There is no case law in Pennsylvania that directly addresses whether emotional distress damages are allowed in a legal malpractice case. In 2011, the Pennsylvania Supreme Court decided in Toney v. Chester County Hospital, 36 A.3d 83 (2011) that it was possible for a plaintiff to have a case for negligent infliction of emotional distress based upon the special relationship between the doctor and the patient. In doing so the Pennsylvania Supreme Court held that the plaintiff in such cases must prove causation, and where the emotional injury did not result in a physical injury, the plaintiff must still prove the emotional injury was “genuine” and that “damages” resulted. Id. In those such cases the Pennsylvania Supreme Court noted that the task of determining whether the plaintiff could prove that actual damages resulted was left to the trial courts. Id. However, this case does not address negligent infliction of emotional distress in a legal malpractice action. Therefore, in the absence of any case law directly involving a legal malpractice action, it appears that Pennsylvania follows “[t] he prevailing rule that damages for emotional injuries are not recoverable if they are a consequence of other damages caused by the attorney’s negligence.” See 2 Ronald E. Mallen & Jeffery M. Smith, Legal Malpractice, § 19.11, at 612 (4th Ed. 1996).

New Jersey follows Connecticut and New York in the majority, noting that there should not be any award for emotional distress damages at “least in the absence of egregious or extraordinary circumstances.” Guatam v. DeLuca, 521 A2d. 1343 (App. Div. 1987). The prevailing view is to limit the damages in legal malpractice cases to “recompensing the injured party for his economic loss.” This court noted that even if such damages were allowed, they should only be awarded if there was medical evidence to clearly establish that the attorney’s conduct resulted in bodily harm or “severe and demonstrable psychiatric sequelae proximately caused by the tortfeasor’s misconduct.”

The type of “severe and demonstrable” harm described by the New Jersey Appellate Division is evident in the New Jersey Federal District Court in Lawson v. Nugent, 702 F. Supp. 91 (D.N.J. 1988). In Lawson, the attorney’s negligent representation in a criminal matter that resulted in an extra twenty months of incarceration also warranted damages for emotional distress because the malpractice resulted in a loss of the plaintiff’s freedom. It was clear that the client in that case suffered emotional distress that was not only a direct result of the attorney’s malpractice, but was also a foreseeable result of that negligent conduct. The district court reasoned that the client’s “loss of liberty” that resulted from the attorney’s malpractice was a compelling reason to depart from the general prohibition. The same “loss of liberty” exception is also applied in the First Circuit in a case out of Massachusetts. In Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987), the First Circuit allowed emotional distress damages where the attorney’s conduct caused the client to be incarcerated. In that case, the court appointed attorney’s misrepresentations to the court resulted in the client getting committed into a psychiatric hospital, even though he was later found to be perfectly sane.

While the foregoing federal court decisions are not alone in holding that there are certain exceptions to the general rule, they do stand firmly in the minority when it comes to application of that exception. In Iowa, the Supreme Court specifically declined to apply an exception in Lawrence v. Grinde, 534 N.W.2d. 414 (Iowa 1995). In that case, the Iowa Supreme Court held that emotional distress damages could be allowed if the attorney’s negligence caused the client to suffer a social stigma, or if the malpractice involved a “peculiar, personal subject matter.” That said, the court in Lawrence v. Grinde, supra, declined to extend the exceptions even though the attorney mismanaged the client’s bankruptcy, a matter that the Court acknowledged was clearly “personal” in nature. Ultimately, the Iowa Supreme court stated that a bankruptcy was not so personal a subject matter as to allow the plaintiff in Lawrence v. Grinde to recover for emotional distress.

More recently, the Iowa court of Appeals likewise declined to apply that exception to a case where the attorney’s negligent conduct caused the client to lose her home, even though it left open the possibility for emotional damages in other “appropriate” cases. Crone v. Nestor, 789 N.W.2d (Iowa App. 2010). In Crone, the former client alleged that an attorney committed malpractice when he failed to establish a trust provided for in a divorce settlement. As a result, the client lost her home and claimed that loss caused her emotional distress. The court analyzed the issue of emotional distress damages under Iowa tort law and concluded the client could not recover emotional-distress damages because she did not present evidence of physical injury and the attorney-client contract did not concern a subject that would carry with it a “deeply emotional response in the event of a breach.”

These cases demonstrate the difficulty a plaintiff will have in persuading a court to deviate from the general prohibition against awarding damages for emotional distress against the negligent attorney. Although some jurisdictions, like New Jersey and Iowa carve out distinct exceptions, the recent cases indicate that those jurisdictions are not willing to deviate from the general rule. Moreover, these decisions provide defense counsel in a legal malpractice case with specific and clear examples of the kind of negligent conduct that will arguably be considered “extreme and outrageous” and outside the boundaries tolerated in a civilized society. Accordingly, defense counsel in the legal malpractice suit faced with a claim for emotional distress is almost certain to have such claims for damages dismissed.