Despite frequent attempts by claimants in legal malpractice actions to assert otherwise, the issue of whether emotional distress damages are generally available in legal malpractice claims is still undecided under Maryland case law. There is case law, however, which creates a perfect defense in most cases where such claims are made.
It is well-established that a party claiming damages in a legal malpractice case must establish that the attorney’s negligence was the proximate cause of those damages, which necessarily includes an examination of whether the damages requested were foreseeable. A foreseeability of harm analysis is one theory by which the Court of Appeals of Maryland has expressly limited recovery for emotional distress damages. Dobbins v. Wash. Suburban Sanitary Comm’n, 338 Md. 341, 348 (1995). In that case, the Court of Appeals reaffirmed its holding in State v. Baltimore Transit Co., 197 Md. 528 (1951) that emotional injuries are not ordinarily contemplated as a natural and probable consequence of a negligently inflicted injury to property.
Relying on these principles, it is clear that emotional injuries are not a foreseeable consequence of an attorney’s malpractice when the underlying case sought redress for injuries to a client’s financial interests, such as in personal injury or breach of contract cases. When an attorney’s malpractice results in damage to the client’s financial interests, the client suffers a form of property damage, and, as stated in Dobbins, it is not foreseeable that the client will suffer emotional injuries in connection with such a loss.
Additionally, the Court of Appeals, relying on the general rule that compensation will be denied for mental anguish resulting from damage caused to property, directly opined that emotional distress damages are not recoverable in a negligence action against an accountant for negligent preparation of tax returns. See H&R Block, Inc. v. Testerman, 275 Md. 36, 48-49 (1975), overruled on other grounds by Owens-Illinois, inc. v. Zenobia, 325 Md. 420, 453 (1992). While that opinion relied primarily upon the lack of physical injury caused to the claimant, the case is instructive for the defense of an attorney in that the Court denied compensation for emotional distress in a professional negligence case where the damage caused was financial in nature.
Despite the supportive case law in Maryland for lawyers, it is important to note that courts in other jurisdictions have permitted the recovery of emotional distress or other non-economic damages when a lawyer’s malpractice causes damage to certain non-financial interests of a client, such as a loss of liberty, see Wagenmann v. Adams, 829 F.2d 196, 221-23 (1st Cir. 1987) or the loss of society of a child. See Person v. Behnke, 611 N.E.2d 1350, 1353-54 (Ill. App. Ct. 1993).
The general rule across the country is that emotional distress damages may not be recovered if they arise out of damages caused by an attorney’s negligence. See generally Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 21:11 (2010 Ed.); see also Reed v. Mitchell & Timbanard, P.C., 903 P.2d 621, 626 (Ariz. Ct. App. 1995); Hamilton v. Powell, Goldstein, Frazer & Murphy, 306 S.E.2d 340, 343 (Ga. Ct. App. 1983); Gautam v. De Luca, 521 A.2d 1343, 1348-49 (N.J. Super. Ct. App. Div. 1987); Sanders v. Rosen, 605 N.Y.S.2d 805, 810-11 (1993).
Alvin I. Frederick is a principal and Richard J. Berwanger, Jr., is an associate attorney at Eccleston & Wolf, P.C. in Hanover, Maryland.