Saturday, August 16, 2008

No Expert Testimony Needed To Establish Fiduciary Breach

The Mississippi Supreme Court affirmed a jury verdict in a case brought against an attorney by a former client. The lawyer had been retained by a husband and wife to prosecute a medical malpractice claim on behalf of them and their minor child. The husband left Mississippi to pursue a Hollywood film career; the wife and family stayed behind. The wife and the attorney then commenced an affair, while he continued to represent them. The husband discovered the affair, discharged the attorney and obtained a divorce on grounds of "uncondoned adultery."  He then filed suit in the present case, claiming breach of contract, alienation of affection and intentional infliction of emotional distress.

The court held that these claims were properly submitted to the jury even without expert testimony. The contention that the breach of contract claim was really a legal malpractice claim (and thus required expert testimony) was rejected. Even if a malpractice case, a lay jury could evaluate whether the lawyer had  breached his fiduciary obligations to the plaintiff by engaging in an adulterous affair without the need of expert help. The court also discussed the impact of the professional conduct rules in civil litigation.

The damage award was for $1.5 million. The lawyer and the wife married and have a child. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/08/no-expert-neede.html

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