Matthew B. Weisberg ()
In the beginning, there were courts of chancery separate and apart from courts of law. Chancery courts would deal with financial or commercial damages, while courts of law would deal with noneconomic personal losses. One could not get an award for pain and suffering from a chancery court just as an injunction would not issue from a court of law.
Since those days of yore, courts across the country have largely abandoned or otherwise merged those distinctions. While New Jersey and Delaware still have chancery courts (and Philadelphia has a commerce court), there is no strict preclusion from obtaining noneconomic damages from those courts of otherwise general jurisdiction. Likewise, causes of action have similarly merged; for example, commercial disparagement remedies financial losses as well as reputational harms.
However, there are still holdovers in our collective legal subconscious. For example, the gist of the action doctrine or economic loss rule may preclude an action in tort in favor of an action in strict contract. Negligent infliction of emotional distress still requires some sort of personal injury regardless that the vagaries giving rise to that cause of action are convoluted (i.e., is it within the zone of danger? Is it a family member injured? Must plaintiff have a physical reaction?).
Because of the case-within-the-case general requirement in a legal malpractice action, the complexities of the interrelationship between financial and personal injury become even more confusing—with remnants of old law (or, at least, old logic) still attempting to tease apart money from pain. To that end, the Superior Court recently reconfirmed that legal malpractice negligence and legal malpractice breach of contract causes allow the same remedies if brought from an underlying civil action. But what are those remedies?
Said differently, can one claim noneconomic harm directly from attorney neglect as separate and apart from the harm of the loss of the underlying action?
Of course, if the underlying action was one for personal injuries, then the legal malpractice plaintiff would be able to claim personal injuries stemming from the underlying accident. Likewise, if the underlying matter required attorney fees, then those attorney fees would be recoverable in a legal malpractice action.
However, can an attorney’s neglect itself generate compensable pain and suffering? For example, if counsel allows the statute of limitations to expire on a strictly financial claim, can the aggrieved client recover not only the underlying financial loss but additionally pain and suffering having nothing to do with the underlying action but having everything to do with the attorney’s inaction?
In Ibn-Sadiika v. Riester, 551 A.2d 1112 (Pa.Super. 1988), appellant-plaintiff Abdullah Haneef Ibn-Sadiika was convicted of first-degree murder and robbery. It was a capital case, and the jury in its penalty phase deadlocked, whereupon the trial court set the penalty at life imprisonment. A variety of post-trial motions were filed bearing an incorrect docket number. Notwithstanding, the trial court heard argument upon the motions and denied them. An appeal followed.
In the appellate record, there existed a stipulation between the prosecutor and defense counsel on behalf of Ibn-Sadiika, then an incarcerated criminal defendant, which waived the misdocketing errors. Despite that stipulated waiver, the Superior Court refused to consider any of the issues raised on appeal, as the underlying docket indicated no post-trial motions had been filed. The Supreme Court denied allocatur.
Ibn-Sadiika, pro se, filed a complaint against defendant Kim Riester, his prior criminal defense counsel, alleging legal malpractice. The complaint was dismissed upon preliminary objections. Ibn-Sadiika filed an appeal, which the Superior Court deemed waived as to the defense attorney’s firm for failure of proper “argumentation.”
As to the only remaining appellate claim against Riester, the Superior Court held that Ibn-Sadiika suffered an “actual loss” arising from his incarceration, citing to Garcia v. Community Legal Services, 524 A.2d 980 (Pa.Super. 1987). To that end, emotional distress was deemed recoverable arising from a professional negligence suit, as in the case styled ei bon ee baya ghananee v. Black, 504 A.2d 281 (Pa.Super. 1986).
In ei bon, the appellant pleaded physical injury; Ibn-Sadiika pleaded only incarceration.
In Hill v. Thorne, 635 A.2d 186 (Pa.Super. 1993), the court deemed cognizable a similar legal malpractice case arising from a wrongful incarceration by deeming the complaint’s pleading of reputational, psychological and physical harm secondary to imprisonment as compensable.
However, in Hedlund Manufacturing v. Weiser, Stapler & Spivak, 539 A.2d 357 (Pa. 1988), the Supreme Court held claims for damages based on legal malpractice as assignable because the claim does not involve personal injury; on the contrary, it only involves pecuniary interest.
In Veneri v. Pappano, 622 A.2d 977 (Pa.Super. 1993), the appellant sued for legal malpractice, alleging the failure of his criminal defense counsel to petition for allowance of appeal to the Pennsylvania Supreme Court waived his federal habeas relief (for failure to exhaust state remedies), engendering “damages [that] could not be more speculative.”
Clearly, the Supreme Court’s holding regarding the pecuniary versus personal nature of legal malpractice actions is overbroad if not otherwise dicta. However, with that sentiment, one starts to see remnants of courts’ attempting to separate the financial from the personal injury. Regarding the prisoner actions, not only are they all pro se, but it is now a somewhat firm requirement that a one-time criminal defendant must not only be held ultimately “not guilty” but also be “actually innocent” in order to recover in legal malpractice; thus, those cases offer no support.
This brings us back to the beginning: Is pain and suffering compensable if only arising from attorney neglect as distinct from the underlying claimed malpractice action?
It should be compensable.
The distinction between money and physical or mental anguish was always fictional. Of course, a legal malpractice claim is for money. A successful verdict therein cannot resurrect the underlying lost cause. So are personal injury or breach of contract actions, both held to lie in legal malpractice. Further, anyone who has ever felt any sense of financial uncertainty knows well that money and anguish are interconnected.
While courts will likely attempt to straddle the line between the Supreme Court’s overbroad dicta and the prisoner pro se cases by looking for some situational degree similar to NIED, in this instance this concept of saving the simplest yet most intangible remedies (suffering) for the most extreme cases just propagates the age-old fiction for no reason. In terms of precedent, it’s a bad idea to couch remedies based solely on individualized facts.
In representing victims of attorney neglect, I can readily confirm that there is an absolute physical component secondary to professional neglect—not unnecessarily differentiating between pain and suffering. There is betrayal even without a fiduciary breach. There is a tremendous lapse of time incurred, which itself is a damage. But moreso, there is just an out-and-out belief that the system not only failed them but justice itself does not exist.
Don’t we recognize that anguish? Have we not also felt that sting of despair, injustice or the stomach-churning when all is thought to have been lost due to an erroneous jury verdict, a misguided trial judge improperly sustaining an objection precluding a crucial piece of evidence, a meritorious appellate issue waived for arcane reasons, or a case being prematurely tossed or allowed to linger when the opposite should have occurred?
While our precept of stare decisis has done us well before the common law since the Magna Carta, error does not become cleansed by repetition. Whoever invented the time-worn concept that money is separate from anguish obviously never lost their home, business or case due to the neglect of another.
While I do not have an authoritative analysis of the law of damages culled from precedent overview (because no such overview is clearly available), sound policy, if not logic and common human experience, dictates at the very least, in keeping with the sparse precedent discussed, that courts should allow noneconomic damages for legal malpractice when the neglect would otherwise be presumed to give rise to the same, regardless of whether the underlying case was in law or in chancery. One does not need to be neglectfully incarcerated to have a noneconomic remedy secondary to attorney neglect giving rise to both a personal and economic loss.
Matthew Weisberg is the managing partner of Weisberg Law. He focuses the firm’s practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.