Under current California law, emotional distress damages are generally not permitted in legal malpractice cases because the courts regard most such claims [rightly, in the view of Decs&Excs] as involving purely economic losses. An innocent criminal defendant, wrongly convicted through the defense attorney's negligence, is virtually the only victim of legal malpractice permitted to recoup damages for the emotional consequences of a lawyer's errors [again rightly, in the view of Decs&Excs].
But what about cases in which the emotional content runs unavoidably high, such as bitter marital dissolutions? Can't the attorney be held liable for the emotional damage to the client that may inevitably arise from the mishandling of that sort of case? Not under current law, and the most recent indication is that that rule is not about to change:
Walter Olson at Overlawyered points to a report on an unpublished order of the First District Court of Appeal in San Francisco, declining to make an exception to the usual rule on non-recovery for emotional distress, even in a divorce case in which the client alleged that the attorney had "made mistakes that turned his life upside-down and left him wondering if his new marriage was legitimate."
[The client,] Rinaldi accuses [his former attorney] Pisano of giving him bad advice and failing to serve his first wife with certain papers during their divorce proceedings. On top of at least $147,000 in compensatory damages, he sought unspecified damages for emotional distress in his suit, which was filed in August. The turmoil arose, Rinaldi says, when his first wife went to court to revisit the division of property -- two years after their 2001 divorce and a year after Rinaldi had remarried. He and his then-pregnant new wife 'were extremely concerned that they were not legitimately married and that their baby was illegitimate,' asserted Rinaldi's malpractice attorney, Meis & Alexander associate Quinton Cutlip, in his briefs.
Procedurally, the trial court denied the attorney-defendant's motion to strike out the claims for emotional distress. The defendant petitioned the Court of Appeal for a writ of mandate to require the trial court to grant the motion. The appellate court has issued an alternative writ, essentially ordering the trial court to grant the motion and to strike out the emotional distress claims unless the trial court -- or more likely the attorneys for the client-plaintiff -- persuade the Court of Appeal there is good cause not to do so. Opposition to the writ is scheduled to be filed by February 1, at which point the appellate court can either issue its final order or set the matter for argument. In either case, the Court may still issue a published decision.
The argument in favor of permitting emotional distress damages will likely focus in the proposition that certain types of cases, such as marital dissolutions, are so inherently emotional that it is compellingly foreseeable to the attorney that his or her mistakes may be emotionally devastating to the client. That sort of foreseeability argument has generally been rejected in recent California decisions, as aptly summarized in Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656:
To borrow a phrase from Blake, if tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then ‘who can stand?’ No one, saint or sinner, can go through life without ‘negligently’ inflicting emotional distress on others.
Interested readers can follow the progress of this newest case [Pisano v. Superior Court, Appellate Case No. A108300] on the Court of Appeal's docket.
Addendum: David Giacalone comments (scroll to bottom of post).
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