Iowa Court Rules That Lawyer May Be Sued for Emotional Pain

By DAVID PITT | July 22, 2013

The Iowa Supreme Court on Friday said a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.

It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.

Klever Miranda and Nancy Campoverde can sue Des Moines attorney Michael Said for emotional damages for being separated long-term from their family, the court said. The couple had lived undocumented in the United States for 15 years when Said told them in 2005 that they might become citizens if they returned to Ecuador and filed certain visa documents. He told them they could apply to have their son, who had gained citizenship, sponsor them as a qualifying relative under immigration laws.

Miranda returned to Ecuador in 2005 and Campoverde joined him in 2007. Once there, their visa requests were denied and they learned U.S. immigration rules prohibited them from returning for 10 years. They left behind two sons and grandchildren, and sued Said for legal malpractice in 2010.

Before the case went to a jury in November 2010, a judge dismissed the emotional distress and punitive damages portion of the lawsuit. A jury awarded the couple $12,500 for their attorney fees after finding malpractice had occurred.

The couple appealed and the Iowa Court of Appeals last year said the judge should have allowed the jury to decide on the emotional distress and punitive portion of the case and ordered a new trial. Said appealed that decision to the Iowa Supreme Court.

Chief Justice Mark Cady wrote Friday that Iowa law generally does not allow emotional stress damages in lawsuits claiming wrongful action unless there has been physical injury or proof of intentional conduct. However, he said, over time emotional distress damages have been allowed in cases, even though the high court hadn’t applied these exceptions to an attorney malpractice case.

The court determined Said knew the consequences of separating the couple from their children and grandchildren were highly emotional, and by only pursuing an option that experts have testified had no chance of success, Said was negligent.

“The negligent conduct was doomed to directly result in a separation of the family for a decade. In this light, it was the type of relationship in which negligent conduct was especially likely to cause severe emotional distress, supporting a duty of care to protect against such harm,” the court wrote.

The court stressed that its ruling is limited in scope, and that such damages are appropriate when an attorney’s acts are “illegitimate and, if pursued, are especially likely to produce serious emotional harm.”

Miranda and Campoverde are eligible for a new trial on emotional distress and punitive damages claims.

Justice Thomas Waterman dissented, saying the ruling could have a “chilling effect on the willingness of attorney to practice immigration law in Iowa.”

“Allowing emotional distress claims in legal malpractice actions will result in fewer lawyers practicing in the field and higher rates charged by those who do,” he wrote.

He said it also will be hard to draw the line in the next malpractice case against a criminal defense attorney who fails to keep a client out of prison.

Said’s attorney, Erich Hoch, said he was disappointed with the ruling.

Angela Campbell, Miranda and Campoverde’s attorney, said the U.S. immigration system failed the family.

“They did the right thing in seeking legal advice to become American citizens and ended up being separated from their children for 10 years,” she said. “This case demonstrates the need for serious immigration reform.”

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