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Emotional Distress Damages: Tied to the Interest Protected by the Attorney-Client Relationship

Kohn v. Schiappa, 281 N.J. Super. 235 (1995)

NJ Underlying Adoption Action

Student Contributor: Daniel Schick

Facts: Plaintiffs retained counsel to assist them in adopting a child. Defendant’s alleged malpractice arose from serving the adoption complaint on the birth parents, thereby erroneously disclosing to them privileged information, including the name and address of the adoptive parents and the adoptee. This breach of confidentiality allegedly caused the plaintiffs to suffer severe emotional distress.

The defendant attorney moved for summary judgment urging that under New Jersey law, recovery for emotional distress is precluded in actions for legal malpractice. Plaintiffs, however, argued that they were entitled to damages for emotional distress, since the attorney-client relationship was never predicated upon the protection of any economic interest.

Issue: Are damages for emotional distress recoverable where an attorney is retained to pursue non-economic claims?

Ruling: Yes. Plaintiffs retained the defendant attorney to handle an adoption, not to seek recovery for an economic loss. If plaintiffs are precluded from asserting and proving the mental anguish and distress purportedly caused by counsel’s wrongful disclosure of confidential information, then they are, for all intents and purposes, left without any remedy for counsel’s negligence. Accordingly, affording virtual immunity to negligent attorneys who are retained for non-economic purposes is contrary to the public interest.

Lesson: Damages for emotional distress will be allowed in an action for legal malpractice where the foundation of the attorney-client relationship is something other than the protection of the client’s economic interests.

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Posted in: Damages, New Jersey