When an attorney commits legal malpractice causing harm to his/her client, the client naturally feels upset. Many clients desire recovery of damages for their emotional distress as part of their legal malpractice action against their former attorney. Unfortunately, Massachusetts courts generally do not permit the recovery of emotional distress damages in legal malpractice claims, and instead limit recoveries to loss of money or property.
One exception to this general rule is exemplified in the case of Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987). In broad strokes, Wagenmann, a person with no psychiatric issues, was involuntarily committed to a mental hospital due to his attorney’s nonfeasance. Wagenmann was freed due only to the efforts of a court-appointed psychiatrist who examined him, found him mentally sound, and took it upon himself to contact a judge to secure Wagenmann’s release. On this shocking fact pattern the federal First Circuit Court of Appeals upheld a recovery for emotional distress damages to compensate Wagenmann for his attorney’s malpractice (note: Wagenmann suffered no property loss whatsoever). But again, Wagenmann outlines the rare exception to the general rule that emotional distress damages may not be legally available to legal malpractice plaintiffs.
What is the reason for this prohibition? First is the concept of legal foreseeability. Courts will award emotional distress damages outside the legal malpractice context where it is foreseeable that a defendant’s actions would cause the plaintiff emotional distress. In the legal malpractice arena, courts have ruled that emotional distress is not a foreseeable consequence of an attorney’s mishandling a legal matter. Foreseeability is the reason that Massachusetts state courts, like the federal Court of Appeals deciding Wagenmann, do not allow emotional distress damages in legal malpractice cases. Massachusetts state courts hold that only economic damages are foreseeable from an attorney’s negligence. See Iacono v. Boncore, 16 Mass.L.Rptr. 681, *2 (Mass. Super. Ct. June 18, 2003) (unpublished decision). Another explanation is that permitting dissatisfied clients to sue their attorneys for emotional distress would open floodgates of litigation. Finally, it is thought that the excessive litigation would have a chilling effect on attorneys’ willingness to be zealous advocates for their clients. For further examination of these rationales, see Alex B. Long, Lawyers Intentionally Inflicting Emotional Distress, 42 SETON HALL L. REV. 55, 76-77 (2012). It is Attorney Kazarian’s view that these rationales are unpersuasive, and that the test of foreseeability should govern. Who could doubt that lawyer negligence that leads to, say, foreclosure of a family home does not foreseeably cause emotional harm?
The bottom line here is that it is normal to feel emotionally troubled by an attorney’s malpractice, but do not expect a court to award compensation for it. While there are non-binding trial court decisions, and scant suggestions to the contrary in appellate rulings, the general rule is against recovery of emotional harm damages.
