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Courts Split on Whether Legal Malpractice Claims Can Include Punitive Damages

A client suing her attorney for alleged malpractice cannot include a claim for emotional distress in the lawsuit, according to a recent ruling by a Connecticut judge. The Connecticut Law Tribune reported that Judge Jon Blue held that while the plaintiff in the case may be entitled to punitive damages if the allegations are true but she could not sue her attorney for emotional distress. 

The Lawsuit

The plaintiff alleged that her attorney failed to timely file a lawsuit against a bar for serving alcoholic beverages to an intoxicated patron. The person was the driver of a vehicle that struck and critically injured the plaintiff. The lawyer did, however, sue the driver who settled the case with the plaintiff. According to the plaintiff, her attorney reassured her that she would be able to recuperate damages from the bar even after he had missed the statute of limitations for filing a lawsuit. 

Other Decisions

This decision contrasts with a ruling by the Iowa Supreme Court (“ISC”) last year allowing an plaintiff to move forward with an emotional distress claim based in a malpractice lawsuit against the plaintiff’s immigration attorney. The decision was featured in an American Bar Association (“ABA”) Journal article. 

According to the ISC’s decision, the immigraiton attorney should have known that his inaccurate legal advice could cause severe emotional distress to his clients. The Ecuadorean couple were separated from their children for 10 years after following the attorney’s instructions to leave the United States. The ISC upheld a lower court’s decision that remanded the county case for a new trial on punitive damages and emotional distress. Notably, punitive damages are allowed based on the finding that the attorney’s conduct was not merely negligent, but willful and wanton. This is the first case in which Iowa has allowed emotional distress damages in a legal malpractice claim. 

Emotional Distress

When the purposeful actions of another causes someone harm, the victim may have a tort claim. These claims not only include physical harm but also emotional harm. This is where a claim of negligent or intentional infliction of emotional distress comes in.

Intentional infliction of emotional distress (IIED) contains four elements:

  • The defendant must act recklessly or intentionally;
  • The defendant’s conduct must be extreme and outrageous;
  • The defendant’s conduct must have caused harm; and
  • The harm resulted in severe emotional distress. 

Negligent infliction of emotional distress, on the other hand, can potentially turn into a claim for merely hurt feelings unless the injured party can establish the following elements:

  • The defendant’s actions caused, however minor, some kind of physical impact or contact; or
  • The plaintiff was in the “zone of danger” of the defendant’s negligent act; or
  • The plaintiff’s emotional harm caused by the defendant’s negligent conduct was foreseeable.

Moreover, many states have a variation of the second element and require that the plaintiff’s emotional harm be so significant that it causes physical symptoms or some kind of physical manifestation. 

Our Attorneys Can Help


If you are hurt in a Las Vegas motorcycle accident, the personal injury attorneys at H&P Law can explain your rights and obligations under the law. We will fight to seek the compensation you deserve. Contact our Henderson or Las Vegas office today to speak with a lawyer.

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