The recent decision of Knutson v. Foster (2018 DJDAR 7891) is troubling. What appears to be “textbook” attorney negligence has escalated into new precedent with the Court of Appeal abandoning the substantial factor causation analysis traditionally applied to a claim against an attorney for breach of fiduciary duty. This case also opens a new door for the recovery of emotional distress damages.

According to the opinion, when talented high school swimmer Dagny Knutson was evaluating which university to attend in 2010, head USA Swimming coach Mark Schubert recommended Knutson abandon her university plans in favor of swimming professionally. Schubert orally promised to support and train Knutson at a “Center for Excellence” in Fullerton through the 2016 Rio Olympics. The offer did not include any contingencies on performance markers. Knutson accepted this oral offer, which was not reduced to writing. At Schubert’s recommendation, Knutson retained Evan Morgenstein, a sports agent, to be her agent.