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58 Fordham L. Rev. 1309 (1989-1990)
An Attorney's Liability for the Negligent Infliction of Emotional Distress

handle is hein.journals/flr58 and id is 1317 raw text is: AN ATTORNEY'S LIABILITY FOR THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS INTRODUCTION As a result of a dramatic growth in the number of legal malpractice suits,' there increasingly has arisen the question of whether an attorney should be liable for the negligent infliction of emotional distress.2 Most decisions have limited recovery to cases in which the client suffered a physical injury or the attorney acted egregiously.3 Such requirements ensure the claim's genuineness, conserve judicial resources, and protect the attorney from unfair liability.4 Some recent decisions, however, have permitted plaintiffs to recover for emotional distress without regard to the degree of the attorney's neg- ligence.5 These opinions examine the client interest that the attorney represented.6 This approach distinguishes the majority rule by differenti- ating between the client's personal and pecuniary interests.7 This view suggests that personal interests are entitled to greater protection.8 Where a personal interest is injured, emotional harm is more likely and the risk of fraudulent claims limited.9 When the attorney's negligence harms a 1. Since the 1960's, there has been a large increase in the number of legal malprac- tice cases. See 1 R. Mallen & J. Smith, Legal Malpractice 17 (3d ed. 1989). For a collec- tion of statistics showing the extent of the increase, see id. at 17-29. 2. See, eg., Schlumm v. Terrence J. O'Hagan, P.C., 173 Mich. App. 345, 359, 433 N.W.2d 839, 846 (1988), appeal denied, 433 Mich. 855 (1989); Gillespie V. Klun, 406 N.W.2d 547, 549 (Minn. Ct. App. 1987); Cosgrove v. Grimes, 774 S.W.2d 662, 665-66 (Tex. 1989). 3. See, eg., Timms v. Rosenblum, 713 F. Supp. 948, 954-55 (E.D. Va. 1989); Dorsey v. Purvis, 543 So. 2d 703, 704 (Ala. Civ. App. 1989); Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 415, 306 S.E.2d 340, 343 (1983), aff'd, 252 Ga. 149, 311 S.E.2d 818 (1984); Segall v. Berkson, 139 Ill. App. 3d 325, 330-31, 487 N.E.2d 752, 756 (1985); Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573, 576 (Iowa Ct. App. 1987); Bowman v. Doherty, 235 Kan. 870, 877, 686 P.2d 112, 119 (1984); 1 R. Mallen & J. Smith, supra note 1, at 903-04. 4. See infra notes 90-96 and accompanying text. 5. See, eg., Wagenmarm v. Adams, 829 F.2d 196, 222-23 (1st Cir. 1987); Lawson v. Nugent, 702 F. Supp. 91, 93-95 (D.N.J. 1988); Snyder v. Baumecker, 708 F. Supp. 1451, 1464 (D.N.J. 1989); Holliday v. Jones, 264 Cal. Rptr. 448, 459 (Ct. App. 1989); McEvoy v. Helikson, 277 Or. 781, 788-89, 562 P.2d 540, 544 (1977). 6. See, eg., Wagenmann, 829 F.2d at 222; Lawson, 702 F. Supp. at 93-95; Holliday, 264 Cal. Rptr. at 459. 7. See Wagenmann, 829 F.2d at 222; Holliday, 264 Cal. Rptr. at 455-59. A personal interest is a non-pecuniary interest. Compare Wagenmann, 829 F.2d at 222 (injury to liberty interest supported claim for emotional distress) with Holliday, 264 Cal. Rptr. at 456 (injury to property interest insufficient to support claim for emotional dis- tress). Examples of personal interests include liberty, see Wagenmann, 829 F.2d at 222, and the right to child custody, see Hilt v. Bernstein, 75 Or. App. 502, 515, 707 P.2d 88, 96 (1985). 8. See, eg., Holliday, 264 Cal. Rptr. at 456-59 (emotional distress damages awarded because attorney's negligence injured a fundamental personal right); Hilt, 75 Or. App. at 515, 707 P.2d at 95 (emotional distress recovery denied because the negligence injured a pecuniary interest that did not suffice as a basis for emotional distress award). 9. See infra note 98-107 and accompanying text. 1309

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