Can unhappy clients sue their lawyers for emotional distress?

There has been no guidance on the matter from the appellate courts in Connecticut. Perhaps the most noteworthy case on the topic was decided last year by the Iowa Supreme Court, which ruled that emotional distress damages may be awarded in a legal malpractice case. In that case, Miranda v. Said, an immigration attorney’s reckless representation led to the plaintiff’s deportation from the country and separation from his wife and children.

But now a Connecticut Superior Court judge has taken the opposite stance, ruling that a client cannot file an emotional distress claim against an attorney accused of negligence during the course of legal representation.

The ruling comes in the case of an injured woman who says her lawyer failed to file a lawsuit in a timely manner. The woman’s claims of legal malpractice, breach of fiduciary duty and negligent misrepresentation are still pending and could end up before a jury.

The lawsuit was filed by Kimberly Ann Tyrseck against Mark Carbutti, of the Carbutti Law Firm in Wallingford.

At about 1 a.m. on Feb. 24, 2011, Tyrseck was standing near the edge of a road in New Britain. As she began to cross the street, a vehicle driven by Jessica Parr hit Tyrseck.

Tyrseck rolled up onto the hood, hit her head on the windshield and was propelled back onto the roadway, landing a significant distance away. Tyrseck ended up in critical condition at the hospital with a head injury, spent time in a residential treatment facility for brain injury patients and needed significant speech, cognitive, physical and occupational therapies.

She also suffered sustained vertebrae, rib and nose fractures in the accident.

Parr was a bartender at a nearby bar and restaurant named Elmer’s Place. She admitted to police that she was drinking that night. She later failed field sobriety tests and was charged with driving under the influence, her second in less than a year.

Parr was later convicted of the DUI, as well as assault with a deadly weapon or a dangerous instrument. She was sentenced to five years in prison, suspended after nine months, in 2012.

Tyrseck hired Carbutti to represent her in a civil lawsuit against Parr, which eventually was settled out of court. The lawyer also said he would file a claim against Elmer’s Place for serving alcohol to someone the servers knew was already intoxicated.

Carbutti reportedly told his client she should expect another settlement or award from that litigation too. However, Carbutti allegedly failed to file the lawsuit prior to the expiration of the statute of limitations. The state’s Dram Shop Act requires such a claim to be filed within one year of the accident.

Even after the deadline passed, Carbutti reportedly continued to assure his client that she would recover another monetary award or settlement from Elmer’s Place. Finally, in June 2013, Carbutti told Tyrseck she was time-barred from suing Elmer’s Place. She hired lawyers at McCarter & English and sued Carbutti for legal malpractice.

Carbutti’s lawyer, Beverly Knapp Anderson, of Fontaine Alissi in Hartford, filed a motion to strike counts pertaining to emotional distress caused by the lawyer’s alleged malpractice.

Superior Court Judge Jon Blue agreed and dismissed that portion of the lawsuit. He 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. This case differs, Blue wrote, because the negligence involved the attorney’s “failure to follow appropriate standards for the practice of law.”

“If, for example, an attorney negligently gives a client’s home address to an escaped convict, he might be held liable for his client’s resulting emotional distress,” wrote Blue. “This sort of negligence could be committed by anyone, regardless of professional status.” The judge said the same reasoning would apply if a client slipped on a banana peel in a law office, was injured and sued for negligence.

In striking the emotional distress count, Blue said the plaintiff should simply pursue monetary damages under the legal malpractice claim.

“It is a fair inference from her allegations that Carbutti intentionally lied to her about a significant issue in her case,” Blue wrote. “It is also a fair inference that he did so to enhance his professional stature or save his skin by leading his client to believe that he had sued someone who he had not, in fact, sued. This is an iconic example of dishonest, disloyal or immoral behavior on the part of an attorney. An award of punitive damages in this situation would not be impermissible.”

Carbutti did not respond to an interview request. His lawyer, Anderson, declined an interview. Tyrseck’s lawyer, John J. Robinson, of McCarter & English, also declined comment.•