MI:Emotional Distress In Legal Malpractice Claim Usually Not Allowed, But then again...
Lickteig v Alderson, Ondov, Leonard, & Sween, P.A. 556 N.W.2d 557
MI: Underlying damages for emotional distress in a claim for legal malpractice
Student Contributor: Meghan Jean
Facts: Attorneys were admittedly negligent in the handling of the client, Lickteig’s case. At arbitration, Lickteig was awarded $45,000 in general damages, and $45,000 in emotional distress damages. The attorneys appealed the arbitrators judgment on the award of emotional distress.
Issue: Whether in a legal malpractice suit, a judgment for emotional distress is proper.
Ruling: Not generally. The award for emotional distress is narrow. In order to be awarded under this complaint, it must be shown that the attorney acted negligently or in breach of contract. Extra-contractual damages, including those for emotional distress, are not recoverable for breach of contract except in those rare cases where the breach is accompanied by an independent tort. Where the crux of the complaint is the breaching of a contract or the negligent representation of a client, unless some willful malicious act is done against the client, an award for emotional distress is not justified. Because the client, Lickteig, did not allege any willful or wanton act against her by the attorneys, the trial court’s award of emotional distress damages was improper.
Lesson: Willfully harming your client will not only create a claim for legal malpractice, but will also give rise to damages for emotional distress.
In California, emotional distress damages for legal malpractice are serverly limited to a circumstance where as a result of the malpractice the client had something real bad happen---like being sent to jail. The emotional distress damages were recovered based on the humilitaion and conditions the client had to deal with in jail. Some folks think emotional distress damages are recoverable based on a breach of fiduciary duty claim, but i don't beleive that is viable.