Emotional Distress for Legal Malpractice? Possibly…

When the client sues for his lawyer malpractice, he seeks damages for the lawyer’s conduct, particularly compensatory damages for the harm the lawyer’s malfeasance caused. In general, the client cannot be compensated for emotional distress caused by the lawyer’s conduct. Iowa just reminded us there is an exception to the general rule. 

Lawyers Aren’t Usually Liable For Emotional Distress

It is not a novel argument to seek emotional distress damages in a legal malpractice case. A California man sought emotional distress damages when his divorce lawyer led him to doubt the validity of his subsequent marriage, and he even won at the trial court level. The California Court of Appeal ruled against him, though, and said no emotional distress or punitive damages were available. There are likely hundreds (thousands?) of other examples of clients wanting their lawyers to pay them for their emotional pain, but few examples of them actually being made to do so. (Note I did not say “no” examples, but few.)

What Happened In Iowa?

This is why Iowa is making headlines. An immigration attorney has been sued for legal malpractice after giving some very bad advice to his clients. An Ecuadorian couple in the United States illegally sought to make their status right. Their attorney suggested they go back to Ecuador and file papers from there seeking legal immigration status through sponsorship by their son — only the status they sought did not allow children to sponsor parents. From reading the Iowa Supreme Court’s opinion, it seems that this is basic immigration law that any “immigration lawyer” should definitely have known. Not only did the couple lose on their application for legal status, but the United States imposed a ten-year ban on their returning to the US, so they ended up separated from their son for ten years.

This is an extreme case of legal malpractice. Legal malpractice does not generally result in families being separated by continents. Here, the attorney even admitted at trial that he knew the couple’s son could not sponsor them, and he stipulated that no “reasonable attorney” would have employed the strategy he did. So this is not a garden variety negligence case of legal malpractice where the lawyer blew the statute of limitations or missed a key court date; this attorney knew his strategy did not have the “99% chance” of success he claimed to his clients, yet he pursued it exclusively and his clients relied entirely upon his advice.

Iowa’s Decision Makes The News

Despite the lawyer’s particularly bad acts, the fact that the Iowa Supreme Court is allowing the case to move ahead on emotional distress is unusual. Iowa’s general rule is that emotional distress damages are not recoverable in tort actions unless there is “intentional conduct by a defendant or physical injury to the plaintiff.” In legal malpractice cases, which are typically founded on negligence, this standard is not met. Iowa’s rule is not all that different from the rule in other states.

The Iowa Supreme Court engaged in an exhaustive (complete with page-long footnotes) recounting of the history of emotional distress damages. Though it ultimately held that it was not actually making new law, it clearly understood the significance of this case and the ripples that would run through the legal community. The Court analyzed emotional distress both in contract and tort, and in actions sounding in tort but based a bit in contract (like legal malpractice, which is essentially a tort but is based in large part on the contractual relationship between attorney and client). It concluded that in some special relationships, a duty is owed, the  breach of which can lead to emotional distress liability. The relationship between an attorney and client in the immigration context is such a relationship. Ultimately the Court ruled that there was enough evidence that the attorney’s conduct rose to the level of intentional conduct to take the issue to a jury. (It also ruled that the conduct was so bad that a jury might conclude it warranted punitive damages.)

Potential Impact

In the end the Court may be right, and I assume it knows its own law, that it has not actually changed the law in Iowa, but its application here to the attorney-client relationship has the potential for far-reaching impact. As noted above, this is not the first time a legal malpractice claim has been held to potentially warrant emotional distress damages, but these cases are unusual. Iowa’s headline-making may well lead other courts to take a close look at similar cases and consider the application of their existing law as well; it may also embolden clients to seek emotional distress damages when they otherwise would have expected the general rule against them to be followed. It may well trigger an overall expansion of malpractice damages.


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