Common Issues in Legal Malpractice Litigation

Publication year1993
22 Colo.Law. 1260
Colorado Lawyer

1993, June, Pg. 1260. Common Issues in Legal Malpractice Litigation


Vol. 22, No. 6, Pg. 1260

Common Issues in Legal Malpractice Litigation

by David M. Tenner

Every litigator knows that no two cases are the same. However, in legal malpractice litigation, certain issues seem to arise again and again. This article examines three of those issues: (1) liability for a former client's emotional distress, (2) liability to nonclients and (3) immunity for tactical decisions.

Liability for Emotional Distress

The attorney-client relationship is often an emotional and close one. As a result, when legal malpractice actions are brought, a claim for the former client's emotional distress frequently is made. However, whether the client can recover for emotional distress depends on the legal theories brought. Typically, these theories are breach of contract, professional negligence and breach of fiduciary duty.

The battle over whether a plaintiff can recover damages for emotional distress in a case of simple breach of contract is no different in the professional liability case than it is in any other breach of contract case. Defendants uniformly cite the Colorado Supreme Court's decision in Trimble v. City and County of Denver(fn1) and the Court of Appeals' decisions in Adams v. Frontier Airlines Federal Credit Union,(fn2) Denver Publishing Co. v. Kirk(fn3) and Kimelman v. City of Colorado Springs(fn4) for the proposition that damages for emotional distress can be recovered only when a breach of contract is "willful and wanton."(fn5)

Plaintiffs typically counter with citations to Mortgage Finance, Inc. v. Podleski(fn6) for the proposition that emotional distress damages are recoverable in cases of simple breach of contract when they are a natural and proximate consequence of the breach.(fn7) However, because the issue on appeal in Podleski was whether punitive damages may be awarded in breach of contract cases(fn8) and its comments concerning compensatory damages for emotional distress are largely dicta, defendants typically get the better of this argument.

As a result, plaintiffs typically can recover for emotional distress in a claim of breach of contract against their former attorney only if they can prove that the breach was willful and wanton. However, the standard for willful and wanton breach is extremely high. A plaintiff can recover for such a breach only if he or she can prove that the breach was intentional and without any legal justification or excuse.(fn9) Given this, legal malpractice plaintiffs typically are unable to recover for emotional distress damages pursuant to a breach of contract theory.

Former clients likewise have difficulty recovering for emotional distress on their negligence claims. In 1978, the Colorado Supreme Court adopted the "zone of danger" rule in Towns v. Anderson,(fn10) holding that emotional distress damages can be recovered in negligence cases without, physical impact on the plaintiff, but only when the plaintiff is subjected to an unreasonable risk of bodily harm.(fn11)

Like breach of contract cases, plaintiffs typically argue that emotional distress should be recoverable whenever it is a reasonably foreseeable consequence of the attorney's negligence. However, given the numerous occasions in which the Towns rule has been upheld,(fn12) plaintiffs are usually unsuccessful. Because the attorney-client relationship...

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