Many aspects of litigation involve high levels of emotion when reputations, resources, pride, and goals are on the line. Nonetheless, it is highly unusual for an attorney to be subject to mental distress damages arising from a legal malpractice claim. Recoverable damages are usually limited to compensatory losses. However, a recent decision from Iowa’s highest court suggests that the tide may be turning.
In last week’s decision by the Iowa Supreme Court, an attorney’s former clients were permitted to collect emotional distress damages arising from their claims of professional malpractice. In the underlying proceedings, an Ecuadorian family that had illegally immigrated to the US retained an attorney to represent them in removal proceedings. Allegedly, the parents followed their attorney’s advice and left the US only to learn that they were banned from returning to the States for a period of 10 years. Due to the allegedly negligent advice, the parents were separated from their children for a decade.
The parents brought a legal malpractice suit against their former attorney seeking compensatory and emotional distress damages. On appeal, the Iowa Supreme Court overturned the trial court’s decision and concluded that the plaintiffs’ claims for emotional distress damages should have gone to the jury. The court concluded that the plaintiffs’ attorney knew from the on-set the extent of the emotional component of the relationship with his clients. According to the judge, because “[t]he negligent conduct was deemed to directly result in a separation of the family for a decade… it was the type of relationship in which negligent conduct was especially likely to cause severe emotional distress, supporting a duty of care to protect against such harm.”
The Iowa Supreme Court is not the first to permit a plaintiff to recover emotional distress damages against an attorney but the breadth of this particular holding is unsettling. Again, it is not unusual for parties to become emotional during litigation and to feel distressed with certain aspects of the process or the ultimate conclusion. Professional Liability Matters is hopeful that this holding does not open the door to emotional distress exposure whenever the client expresses an emotional reaction to the process. Of course this was an extreme example but what’s next? We will keep a collective eye on this holding to see if the result is increased liability against attorneys, particularly those involved in emotionally charged cases or practice fields. Tune in to a future post when we will address the issue of whether these types of damages are covered in a professional E&O policy.