In contrast, a few days ago, The Connecticut Law Tribune reported that a trial judge took the opposite position and dismissed the emotional distress claims in a malpractice suit filed by a plaintiff who was allegedly injured by her attorney's negligence in not filing a claim in time.
According to the article, the judge opined that if an attorney engages in ordinary negligence that does not involve the practice of law, presumably a client could sue and allege emotional distress but that the case was different because the negligence involved the attorney's "failure to follow appropriate standards for the practice of law."
As I said back when I commented on the Iowa case, I find it difficult to understand why courts typically do not recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years. Is it really that difficult to believe that the attorney's negligence can cause emotional distress? I don't think so. As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.
I can understand the argument that you may not want to allow recovery for emotional distress because that opens the door to recover for injuries that are difficult to quantify or verify or because it opens the door to too much possible liability. I don't necessarily agree with it; but I can understand it. But if that is the case, then you would have to argue that we should not allow recovery for emotional distress under any circumstances. Otherwise, you are saying we can allow recovery for emotional distress in some cases and not in others, with no clear explanation of what supports the distinction.
The only distinction is the old argument that there should be no recovery for emotional distress in cases where the distress is based on pure economic injury. But, again, is it not foreseeable that economic injury can result in emotional distress? I know I am in the minority here, but I just don't find the distinction convincing.
If we are willing to admit that it is foreseeable that the conduct can result in emotional distress, then we should be ready to recognize a right to recover for the foreseeable injury.