Friday, June 16, 2017

Iowa Holds Sex with Client Does Not "By Itself" Give Rise To A Legal Malpractice Claim

The Iowa Supreme Court affirmed a legal malpractice award that in part involved sex with the client and had resulted in bar discipline.

A plaintiff brought claims against her former attorney for legal malpractice, assault and battery, and punitive damages. At the close of the plaintiff’s case, the district court granted the defendant’s motion for directed verdict on two legal malpractice claims: one regarding the preparation of a will and the other for breach of fiduciary duty. The district court submitted to the jury two claims of alleged legal malpractice: representation of the plaintiff in her divorce and representation of the plaintiff in pursuing a claim for assault against her former spouse. The jury returned verdicts for the defendant on the two submitted legal malpractice claims and returned verdicts for the plaintiff on the assault and battery claim and on the punitive damages claim. The jury awarded the plaintiff combined damages of $498,562.44. The plaintiff appeals the district court’s order granting the motion for directed verdict on the two additional claims of legal malpractice. The plaintiff also appeals various evidentiary rulings made by the district court. The defendant cross-appeals on the issue of damages. For the reasons discussed below, we affirm the district court. While we find that the defendant’s cross-appeal was untimely, we reject on the merits the defendant’s challenge to the amount of the jury award.

While representing the client in a divorce

After the meeting, Blessum called Stender and asked if she wanted to meet and catch up. She agreed, and they met at a local restaurant. During this meeting, Blessum told Stender he was unhappy in his marriage. At the end of the evening, Blessum kissed Stender. After Stender got in her car but before she left the parking lot, Blessum sent her a text message asking if they could meet again. Over the next two weeks, Blessum and Stender continued to meet and talk about intimate topics such as Stender’s childhood trauma and her marital and sexual abuse. Within two or three weeks, they began a sexual relationship.

While this sexual relationship continued, Blessum performed several other legal services for Stender. On June 28, Stender executed the will that Blessum had prepared. On August 9, Blessum sent a demand letter to Phillip. In the letter, Blessum demanded that [husband] Phillip agree to three changes in the divorce decree in exchange for Stender’s refraining from filing a civil suit against him for the physical and sexual assault Phillip committed against her in 2009. Blessum was aware the assaults occurred in 2009, and either knew or should have known the statute of limitations had run by the time he sent the letter to Phillip.3 On August 23, Blessum filed the QDRO formalizing Melissa’s interest in Phillip’s retirement account. In January 2012, while the relationship was still ongoing, Blessum assisted Stender with another legal matter.

But things got out of hand

On June 10, Stender went to Blessum’s house to confront him about rumors he was seeing other women. When she arrived, she went into the kitchen where she noticed a bottle of wine with two glasses set on the counter and a frying pan with food on the stove. She picked up the pan from the stove and confronted Blessum by asking if he was cooking for another woman. While Stender was holding the pan, Blessum was standing in front of her. At some point, the pan spilled onto Stender’s shoulder and hot grease caused burns on her back. Because the grease went through her clothing, Blessum began taking off Stender’s shirt.

Stender became anxious from the confrontation and the grease burn. Blessum went outside to retrieve Stender’s purse from her vehicle that contained her anxiety medication. When Blessum came back inside with Stender’s purse, she told him she was done with the relationship and bent down to get the pills out of her purse. While Stender was bent over, but before she could take the pills, Blessum began hitting her arm, forearm, head, and neck. After Blessum hit her, Stender grabbed some of the pills that had spilled on the floor and swallowed them. Stender tried to run out of the house, but Blessum caught her and dragged her back inside. Blessum threw her into the corner and started calling her a “subservient slave.” He pulled her through the living room onto the couch and threatened to sexually assault her. Blessum told Stender if she thought the “other men have hurt [her], . . . just wait and see what [he] do[es] to [her].” He told her he was going to make her vomit her pills so she would remember the entire assault.

It gets even worse

Later in June, Blessum began sending letters to Stender. In the letters, he acknowledged that he had dated other women at the same time as Stender and that he gave her a sexually transmitted disease. The letters also acknowledged the assault and included an apology for all of his misdeeds. Stender also received anonymous items in the mail during this time. On September 19, Stender filed a petition for relief from domestic abuse against Blessum. The district court granted a temporary restraining order that same date.

The majority

We...choose to adopt the majority approach and hold that a violation of one of our Iowa Rules of Professional Conduct cannot be used to establish a per se claim for legal malpractice. A violation may, however, be used as some evidence of negligence as provided in our prior caselaw.See, e.g., Crookham, 584 N.W.2d at 266. But before a violation of our rules of professional conduct can be used—even as some evidence of negligence—there must be an underlying actionable claim against the attorney arising out of how the attorney mishandled a legal matter. To find differently would mean that a violation of the rules themselves provides plaintiffs with an independent cause of action. This result is one that both our rules and our cases have specifically rejected. 

Here, Blessum’s sexual relationship in violation of our rules of professional conduct does not by itself give rise to a legal malpractice claim. In order to succeed on her claim for legal malpractice, Stender would need to demonstrate a duty that was violated and not just the sexual relationship alone.

The court majority's lengthy opinion deals with a host of interesting issues including the testimony of Blessum's spouse

Jan testified that Stender’s version of events was in contrast to her own experience. The testimony was offered to rebut Stender’s testimony that she encouraged Blessum to get back together with Jan. Jan testified that she felt the sexual relationship between Stender and Blessum adversely affected her marriage. Jan testified that Stender harassed her with nasty text messages and emails. She testified about sexually graphic emails and text messages that Stender sent to her. Jan testified that this contact impacted her job and her health and that she lost thirty pounds. Jan moved four times in 2011 and 2012.

Jan also testified that she believed Stender broke into her home on February 14, 2012. Jan testified she and Blessum were attempting to reconcile again around that time. Because their engagement anniversary was February 13, Blessum came to her home and left flowers and a Valentine’s Day card. The next day when Jan returned home, she found a card from Blessum to Stender torn up on the counter next to her own
card with a sign that read “fuck you” next to it.

Jan testified her housekeeper found Stender in Jan’s house in June 2012. Jan was supposed to go to a concert with Blessum that week, but chose not to attend after Stender was found in her house. While Blessum was at the concert, Stender sent Jan text messages stating that Stender was in the shower with Blessum and that Jan did not know how to sexually please her husband and needed Stender to show her. Jan also testified that Stender would send her daughter Facebook messages. Jan testified that she attempted to obtain a restraining order against Stender because of the emails and text messages, but was unsuccessful.

The court held that Jan's testimony was not unduly prejudicial.

Justice Hecht dissented and would remand on Stender's claims for further relief.

I find merit in Stender’s appeal. I would reverse the directed verdict on both the negligence and fiduciary duty issues and remand for a new trial...

Put simply, sexual relationships between lawyers and their clients are fraught with risk of financial and emotional injuries to clients. Because the risk of such injuries to clients is so grave, the rules of professional conduct for lawyers do not merely recommend avoidance of sexual relationships with clients—the rules categorically prohibit the commencement of such relationships during a lawyer–client professional relationship. Blessum clearly breached his professional duty to avoid a sexual relationship with Stender...

Again viewing the record in the light most favorable to Stender, I credit the substantial evidence tending to establish that even before Stender was severely beaten by Blessum, the relationship between the parties was tumultuous and marked by great emotional turmoil. A reasonable jury could find on this record that Stender was exquisitely vulnerable to emotional injury because she had an unfortunate preexisting history of sexual abuse and posttraumatic stress—a history of which Blessum was aware when he commenced the sexual relationship. I find substantial evidence in the record tending to prove Blessum expressly used his knowledge of that history in asserting power over Stender during the assault and that Stender suffered substantial emotional distress as a consequence of the sexual relationship before and after the severe beating. Accordingly, under the applicable standards of review, I believe the district court erred in concluding Stender failed to engender a jury question on damages arising from
Blessum’s breach of duty...

Because a reasonable juror could find that Blessum used information he acquired within the scope of the lawyer–client relationship to Stender’s disadvantage during the assault and that Blessum  dishonestly reinitiated the lawyer–client relationship as a pretext for beginning a sexual relationship, the theory of liability based on a breach of a fiduciary duty should have been submitted to the jury.

Two justices joined the dissent.

The ABA Journal reported on the trial verdict

A former client won a jury award of nearly $500,000 on Wednesday in a malpractice and domestic assault lawsuit against the Iowa lawyer who represented her in a divorce case.

The award against Anthony Zane Blessum, a West Des Moines practitioner who formerly served for 11 years as the top prosecutor in Madison County, includes $100,000 in punitive damages, reports the Des Moines Register.

Blessum earlier pleaded guilty to misdemeanor assault in a related criminal case concerning the attack on Melissa Stender. He was sentenced to seven days in jail and ordered to pay Stender $7,000, the Associated Press reported at the time. He also had his law license suspended for 18 months.

The Iowa Supreme Court imposed the discipline in a legal ethics case, based on findings that Blessum had a sexual relationship with Stender; withdrew unearned funds from a $1,000 retainer she had paid him from a trust account; and physically attacked her, the Des Moines Register reported when the court made its determination earlier this year.

Justia provides a copy of the court’s March 27, 2015 opinion in the ethics case.

The opinion explains that Blessum began representing Stender (referred to as Jane Doe) in a divorce case in 2008 and, in 2011, agreed to help her draw up a will. At that time, a relationship began which lasted more than a year. However, it ended in 2012 after an argument at Blessum’s house erupted into a physical attack.

“Doe was angry Blessum appeared to be fixing a romantic dinner for someone else and she picked up and threw the cooking pan he had been using,” the opinion says.

During the argument, Blessum struck her in the face; hit her multiple times; tried to prevent her from taking anti-anxiety medication; and physically restrained her from leaving his home, the court wrote. She called 911 when he briefly left her alone in the room, then hid the phone.

“Both were unaware the call had gone through and was being monitored and recorded,” the opinion says. Treated at a hospital emergency room after police arrived, Doe suffered a black eye; bruising on her face, neck, arm and abdomen; and other facial injuries.

Blessum apologized and she initially resumed their relationship. Within a few months, however, the two parted for good and he was eventually criminally charged in the attack.

Attorney Roxanne Conlin represented Stender in the civil suit. Conlin said it had been important to her client to hold Blessum accountable for his conduct, the Register reports. “Certainly half-a-million dollars does that. For that part, she’s happy,” Conlin said.

A lawyer for Blessum said he was disappointed by the verdict but declined to discuss the merits of the case with a reporter for the newspaper.

(Mike Frisch) 

http://lawprofessors.typepad.com/legal_profession/2017/06/the-aba-journal-reported-on-the-trial-verdict-a-former-client-won-a-jury-award-of-nearly-500000-on-wednesday-in-a-malpract.html

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