Lead Opinion
OPINION
This case comes before us on appeal from a final judgment entered in the Superior Court following a jury’s verdict in favor of the plaintiff, Maria Del Rosario Vallinoto (Vallinoto), and against the defendant, Edmond A. DiSandro (DiSandro).
I
Facts and Travel
In May 1987, Vallinoto retained DiSandro to represent her in a divorce action brought
Vallinoto’s marriage was by no means a tranquil or a happy one. She testified that during the course of her marriage to Ledo she had been restricted to the marital home, verbally abused, badgered, and belittled. She claims to have suffered severe mental depression and stress, to have entertained suicidal thoughts, and to have been “isolated” and “victimized” by Ledo throughout the course of their ten-year marriage. It was Ledo, however, who commenced the fateful divorce proceedings, with Vallinoto later counterclaiming for divorce.
After having retained and then dismissing two other attorneys with whom she had become dissatisfied in the course of the divorce proceedings, Vallinoto retained DiSandro in May of 1987. DiSandro’s legal efforts on her behalf appear to have been both well performed and successful. DiSandro was able to obtain for her an increase in the weekly child support payments previously ordered for her daughter, Christina, from $15 to $30 per week to $150 to $200 per week. Moreover, at the time that her divorce became final on April 25,1989, Vallinoto was awarded custody of Christina, 60 percent of the marital assets, several priceless paintings and heirlooms, and attorney’s fees. Vallinoto, by her own account, acknowledged receiving excellent legal representation from DiSandro in her divorce proceedings as well as successful final results, all clearly evidenced in her final judgment of divorce. Unfortunately, however, DiSandro’s relationship with Vallinoto extended far beyond his legal representation of her.
In August of 1987, some three months after having been retained to represent Valli-noto in her divorce action, DiSandro and Vallinoto became involved in an intimate physical relationship. That relationship continued until Vallinoto’s last hearing on her divorce petition in December of 1988. DiSandro viewed the relationship as consensual. Vallinoto, on the other hand, alleged that she was compelled to perform sexual acts with DiSandro in part because of an alleged threat that DiSandro had once made to her, stating that if he discontinued his representation of her, she would be deported and lose custody of her child. She also alleged, in like vein, that DiSandro told her that he had undertaken to represent her only because she had been referred to him by a mutual friend and that good lawyers like himself usually did not take cases that other lawyers had started, which she interpreted to mean that if he withdrew as her counsel in her case, other good attorneys would not undertake to represent her. Vallinoto asserted that as a result of those implied threats, she felt compelled to comply with DiSandro’s sexual demands, fearing that he would terminate his representation of her and that she would not thereafter be able to engage another competent attorney.
During the jury trial below, DiSandro’s law partner, Z. Hershel Smith (Smith), was called as a witness by Vallinoto to testify with regard to the nature of the relationship that existed between Vallinоto and DiSandro. Smith testified that contrary to Vallinoto’s
By the time Vallinoto’s divorce became final in early 1989, the affairs, both legal and nonlegal, between her and DiSandro had ended. She returned, however, to DiSandro some eight months later, seeking legal assistance on another matter in which she was being sued by her former husband, Ledo. She and DiSandro did not renew their sexual intimacy during that particular attorney-client relationship, and Vallinoto has never complained of DiSandro’s handling of that matter for her.
The record also reveals that Vallinoto’s extramarital interests, however, were not restricted to her attorney’s participation. She admitted that during her ongoing sexual relationship with DiSandro and prior to the time of concluding her divorce petition hearings and continuing on thereafter into late 1989, she was dating someone other than DiSan-dro. In the summer of 1989 she traveled to Hawaii with that other person and shared the same hotel room with him for some two weeks. Later, in early 1990, she then began dating a new and different man. It was while planning with this latest man to purchase a larger house in which to live together that she decided to tell him of her previous sexual relationship with DiSandro. She eventually married that man in December 1990. It was some three weeks later, in January 1991, that she decided, with the encouragement of her new husband, to commence her litigation seeking monetary damages from DiSandro.
in her civil action complaint filed in the Superior Court she asserted therein claims for legal malpractice against DiSandro and his law firm, battery and intentional infliction of emotional distress against DiSandro, deceit against DiSandro and the law firm, and negligence against the law firm.
II
Legal Malpractice
In order to prevail on a negligence-based legal malpractice claim, Vallinoto was required to prove that she had retained the defendant-attorney to represent her in her divorce proceeding, that the attorney had been negligent, and that the attorney’s “‘negligence was the proximate cause of * * * her damages or loss.’ ” Scuncio Motors, Inc. v. Teverow,
In Suppressed v. Suppressed,
Although in her complaint the client did not specifically label her cause of action “legal malpractice,” the Illinois court nonetheless interpreted her allegations as such. That court concluded, however, that the client had failed to demonstrate, on the evidence presented, proof of a breach of duty and damages. The court accordingly held that the client was not entitled to recovery. The client’s legal malpractice claim in that ease was rejected, in part, because the Illinois court refused to go as far as to hold that inherent in every attorney-client relationship was a duty to refrain from sexually intimate behavior. Instead, the court held there that “the breach of duty alleged in a legal malpractice action must be more clearly linked to the attorney’s legal representation.”
The Suppressed court also found that the client failed to prove “damages stemming from a loss suffered in the client's underlying legal action or * * * that the client’s legal position was somehow compromised by the breach of duty alleged.” Id.
In McDaniel v. Gile,
The case before us involves, unlike Suppressed or McDaniel, a negligence-based legal malpractice claim as opposed to a legal malpractice claim based on a breach of fiduciary duty. However, under either theory, plaintiffs claim for legal malpractice would fail. There is no relevant probative evidence in the trial record that suggests to us that the legal services rendered by DiSandro were made contingent on sexual involvement with Vallinoto. She clearly had the ability and the knowledge to discharge and leave DiSandro at any time if she was ever dissatisfied with his legal representation in her divorce сase. She had earlier, prior to retaining DiSandro, discharged two previous attorneys with whom she had been dissatis
Accordingly, we conclude that since Valli-noto failed to produce evidence of any damages resulting to her from the litigation in which she was represented by DiSandro in support of her claim for negligence-based legal malpractice, the trial justice erred in not granting DiSandro’s motion for a directed verdict on the malpractice count. A directed verdict should also have been granted on the negligence-based legal malpractice count asserted against the law firm (count 6). There was absolutely no evidence presented in support of that claim at trial that could prove that DiSandro, when committing the various sexual acts with Vallinoto, was then acting on behalf of the partnership and within the reasonable scope of the partnership business. See Uniform Partnership Act of 1914 § 13, 6 U.L.A. 444 (1995); Uniform Partnership Act of 1994 § 305, 6 U.L.A. 44 (1995); J.R. Kemper, Annotation, Vicarious Liability of Attorney for Tort of Partner in Law Firm,
As an appellate court, we are restricted when reviewing a trial record, to what that record discloses to us. In this case, the trial record clearly discloses that plaintiff sustained no loss or damage that she could proximately relate to DiSandro’s legal performance or to his law firm’s actions, in support of her count 5 and count 6 claims for malpractice based upon alleged negligence in the handling of her bitterly contested di
The dissent suggests that in reviewing the sufficiency of the trial record concerning plaintiffs count 5 and count 6 negligence-based malpractice claims, we should consider DiSandro’s later adjudication of having violated certain disciplinary and professional-conduct rules stemming from his extralegal sexual activities with the plaintiff.
In view of that clear trial record, Vallinoto cannot hebetate the basic legal deficiency in her count 5 negligence malpractice claim by inverting it into a breach of fiduciary claim. The clear and unanimous judicial rule, as well as academic authority, is that mere violation of codes of professional responsibility and conduct do not automatically establish a private cause of action for damages sounding in negligence for breach of fiduciary obligation.
“All of the courts that have directly considered this question have held that it does not. See Martin v. Trevino,578 S.W.2d 763 (Tex.Civ.App.1978); Tingle v. Arnold, Cate & Allen,129 Ga.App. 134 ,199 S.E.2d 260 (1973) (statute prohibiting solicitation); Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc.,358 F.Supp. 17 (E.D.Tenn.1972); Bush v. Morris,123 Ga.App. 497 ,181 S.E.2d 503 (1971) (statute prohibiting DA from having private practice); Lyddon v. Shaw,56 Ill.App.3d 815 ,14 Ill.Dec. 489 ,372 N.E.2d 685 (1978); Gifford v. Harley,62 A.D.2d 5 ,404 N.Y.S.2d 405 (1978); Hill v. Willmott,561 S.W.2d 331 (Ky.App.1978); Drago v. Buonagurio,46 N.Y.2d 778 ,413 N.Y.S.2d 910 ,386 N.E.2d 821 (1978); Spencer v. Burglass,337 So.2d 596 (La.App.1976); Noble v. Sears, Roebuck & Co.,33 Cal.App.3d 654 ,109 Cal.Rptr. 269 (1973); Bickel v. Mackie,447 F.Supp. 1376 (N.D.Iowa 1978); Nelson v. Miller,227 Kan. 271 ,607 P.2d 438 (1980); Young v. Hecht,3 Kan.App.2d 510 ,597 P.2d 682 (1979); Friedman v. Dozorc,83 Mich.App. 429 ,268 N.W.2d 673 (1978); Brody v. Ruby,267 N.W.2d 902 (Iowa 1978). It also appears that most legal writers on this subject approve the rule as stated by these courts.
“The principal reasons for this rule, as stated in the opinions by these courts, are the following:
(a) The statute or Code of Professional Responsibility was not intended to create a private cause of action. On the contrary, the sole intended remedy for a violation of such a statute or code is the imposition of discipline by disbarment, suspension or reprimand of the offending attorney. See, e.g., Martin v. Trevino, supra, at 770; Bickel v. Mackie, supra, at 1383; Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc., supra, at 22; Hill v. Willmott, supra, at 333-34, and Noble v. Sears, Roebuck & Co., supra,109 Cal.Rptr. at 271-72 . See also Brody v. Ruby, supra, at 907-08;Spencer v. Burglass, supra, at 600-01, and Tingle v. Arnold, Cate & Allen, supra, 199 S.E.2d at 263 .” Bob Godfrey Pontiac, Inc. v. Roloff,291 Or. 318 ,630 P.2d 840 , 847-48 (1981). See also Hizey v. Carpenter,119 Wash.2d 251 ,830 P.2d 646 (1992).
Our Rules of Professional Conduct, art.V, likewise state in the preamble:
“Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.”
Ill
Intentional Infliction of Emotional Distress
We likewise conclude that the trial justice erred in not granting DiSandro’s motion for a directed verdict on Vallinoto’s claim for intentional infliction of emotional distress (count 2). In order to prevail on that claim, Vallinoto was required to prove extreme and outrageous conduct that intentionally or recklessly resultеd in' causing her severe emotional distress. See Reilly v. United States,
In McDaniel, supra., the court held that the client-plaintiffs claim for intentional infliction of emotional distress avoided summary judgment because in that case the plaintiff had not only proven that her attorney’s sexual harassment was based on outrageous conduct but, in addition, had presented evidence of actual damages resulting to her therefrom. Claims for intentional infliction of emotional distress were also suggested by that court as being permissible upon the specific facts present in Suppressed, supra., and In re Marriage of Kantar,
The record reflects that Vallinoto did testify that she experienced shame, headaches, fear, terror, crying, nightmares, and flashbacks, aU of which she personaHy attributed to DiSandro’s sexual conduct. However, the record additionaHy discloses that she had experienced most of those same ailments during her ten-year marriage to Ledo. She also testified that after her divorce case ended, she suffered from shingles. Those subjective declarations alone, without any competent supporting medical evidence tending to prove that any of her aUeged physical His were proximately caused by DiSandro’s conduct and were not simply the aftermath of her recently concluded tumultuous marriage to Ledo, were insufficient to withstand the motion for a directed verdict. See Parrillo v. F.W. Woolworth Co.,
Vallinoto in her appeal appears to have commingled and thus confused her count 2 (intentional infliction of severe mental distress) and her count 5 (negligence-malpractice) claims. She appears to overlook the legal distinction and proof requirements that exist between her negligence claim and her intentional infliction of severe mental distress claim, often referred to as “the tort of outrage.”
“Where mental injury is the sole complaint, recovery for direct damages may be aEowed if the jurisdiction recognizes a tort for infliction of mental distress. Such an action, however, is not for legal malpractice but for a wrong intended to inflict emotional injuries. Similarly, conduct, which is not negligent, such as sexual assault, is governed by ordinary tort rules.” 2 Mullen & Smith, Legal Malpractice, § 19.11 at 612 (4th ed. 1996). (Emphasis added.)
Vallinoto apparently overlooks the fact that while she did aEege in a separate complaint count (count 2) the tort of intentional infliction of emotional distress in which she sought damages for the sexual assaults perpetrated upon her by the defendant,
It is interesting to note that the case record reveals that Vallinoto testified at deposition proceedings on January 10, 1992, that she had in fact been examined by at least three competent medical doctors and other personnel regarding her aEeged emotional-psychic complaints, none of whom were caEed by her to testify. In fact, the first attorney that she had retained to sue DiSan-dro referred her to one of those physicians for an evaluation of her complaints. That attorney was given a report of the doctor’s
IV
Social Worker’s Testimony
DiSandro has also challenged in this appeal the admissibility of the testimony of Vallinoto’s social worker as it pertained to Vallinoto’s count 2 claim for damages. The social worker testified that Vallinoto was suffering from post-traumatic stress disorder, a condition about which DiSandro argues that the social worker was not qualified to give expert opinion testimony. In State v. Willis, 256 Kan. 837,
In any trial after the remand, if the social worker is then able to present sufficient qualification enabling her to give expert medical opinion, she should, it would appear, then be able to testify in regard to the hearsay statements made to her by Vallinoto for the purpose of obtaining psychological treatment and diagnosis. In re Jean Marie W.,
We also note for purposes of guidance during any new trial after remand that the challenged statements, which described the sexual abuse Vallinoto allegedly suffered at. the hands of DiSandro, would not be deemed inadmissible simply on the basis that they tended to assign fault, as asserted in this appeal by DiSandro. Those statements were not made to a physician examining a patient for physical evidence of a crime. See State v. Lima,
We note that the dissent makes reference to the Restatement (Second) Torts § 46 (1965) and several judicial holdings in support of its position that any lay person plaintiff may allege and sue for physical or mental claims of injury and by their own lay opinion testimony, unsupported by any competent medical testimony or evidence, establish origin, existence, and proximate causation thereof. That contended authority is clearly distinguishable on the facts in this case. The several cited supporting judicial holdings concerned cases that primarily involved questions of pleading wherein the actions had been dismissed while in the pleading stage and were later reversed on appeal and remanded for trial in light of the very liberal rule permitting an action to overcome dismissal motions at the pleading stage if it appears reasonably probable that the plaintiff, within the framework of the complaint, might be able at trial to produce evidence that might eventually support the complaint’s claim. Bragg v. Warwick Shoppers World, Inc.,
“As a proposition, the recovery of consequential damages for mental or indirect physical injuries should comport with the jurisdictional rules applicable to ordinary tort actions. Thus, if a cognizable wrong, proximate causation and actual damages all exist, recovery should be allowed. Because claims for emotional or some physical injuries often are uncertain or speculative, attempts to recover for such injuries typically fail unless the plaintiff produces persuasive supporting evidence.” 2 Mailen & Smith, Legal Malpractice, § 19.11 at 616.
The plaintiffs count 2 claim for intentional infliction of severe mental distress fails because it was founded on the social worker psychotherapist’s testimony. For that basic reason, the jury’s verdict cannot withstand judicial muster and must be set aside.
“We are not required here to determine whether King David’s conduct reached the level of ‘outrageousness’ that would support recovery of money damages under section 46 [Restatement (Second) of Torts (1965)], because of a glaring failure in the chain of proof required to establish this claim. The Ka-zatskys presented no expert testimony, indeed no evidence at all except their own unsubstantiated averments, concerning their alleged injuries. To permit recovery on the basis of such a questionable showing would necessitate a radical departure from settled principles of Pennsylvania tort doctrine.
« * * #
“It is basic to tort law that an injury is an element to be proven. Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s ‘outrageousness’ without expert medical confirmation that the plaintiff actually sufferedthe claimed distress. Moreover, the requirement of some objective proof of severe emotional distrеss will not present an unsurmountable obstacle to recovery. Those truly damaged should have little difficulty in procuring reliable testimony as to the nature and extent of their injuries. We therefore conclude that if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183 ,527 A.2d 988 , 992, 995 (1987).
We too find ourselves reluctant to adopt the position espoused by the plaintiff as it pertains to her count 2 claim. Such would indeed constitute “radical departure” from long-settled and universal elementary tort principles. Such radical action in any event is totally unnecessary because the plaintiff at retrial will be permitted to pursue her requests for compensatory as well as punitive damages and to recover all to which she can prove she is legally entitled in her remaining viable causes of action.
V
DiSandro’s Threatening Conduct
DiSandro asserts that the admission at trial of evidence relating to threats he allegedly made to Vallinoto’s former husband and to her former husband’s attorney was inadmissible. We agree. Pursuant to Rule 404 of the Rhode Island Rules of Evidence, character evidence is inadmissible to show that a person acted in conformity therewith. Moreover, if those acts were not admitted to show conformity therewith but were instead admitted to show a basis for Vallinoto’s fear of DiSandro, that evidence would still be inadmissible. Those acts were not sufficiently similar to the acts alleged against DiSan-dro by Vallinoto to be relevant to, or at all probative of, the coercion allegedly directed to and felt by Vallinoto. Even assuming that DiSandro had acted aggressively toward Val-linoto’s former husband and his attorney, that alleged aggression was not probative of the fact that DiSandro had acted aggressively toward Vallinoto or that Vallinoto had any reason to fear that such aggression would ever be directed toward her. In fact, DiSan-dro’s alleged threats cоuld more plausibly be interpreted to have been for the purpose of defending and protecting Vallinoto. We not only view that evidence as being improper character evidence but also believe that its probative value, if relevant at all, was substantially outweighed by the danger of unfair prejudice resulting to DiSandro and should not have been admitted, pursuant to Rule 403 of the Rules of Evidence. Accordingly, we find that admission of that evidence was error.
VI
New Trial
Because the jury returned a general verdict that awarded Vallinoto both compensatory and punitive damages, we are unable to determine therefrom the quantum of the impact that the error infected legal malpractice and intentional infliction of emotional distress counts, as well as the other trial errors, had in the actual computation and composition of the total award. The trial justice submitted all counts in the complaint to the jury in such form that only a general verdict could be returned. No special findings were requested by the parties. Consequently, it is impossible for us to determine upon which counts the jurors relied in returning their verdict in respect to liability and damages. Since certain counts should not have been submitted to the jury for the reasons heretofore stated, the general verdict is tainted. We cannot say what portion of the general total verdict reflects a finding and an award stemming from an issue on which a directed verdict should have been returned. In accordance with our holding in Reynolds v. Missler,
In addition, we note that the jury verdict questionnaire reports a general award for compensatory as well as punitive damages for all five of plaintifPs claims. Two of those five claims, intentional infliction of emotional distress and fraud, are the identical claims noted by Judge Selya in Borden. On the uncontroverted facts contained in the jury’s general verdict, the plaintiff here was in fact awarded duplicative as well as incremental damages for the same underlying conduct of defendant, namely, the sexual assaults and the deceit employed in accomplishing those sexual assaults. Clearly the law as recognized in Borden prohibits that recovery. See also DeCosta v. Viacom International, Inc.,
“a plaintiff may not get additional bites of the apple by demanding multiple forms of relief for the same injury or by cloaking a single claim in a variety of legal theories.” Id. at 812.
In this case, it is legally impossible to reasonably measure or determine the propriety of the jury’s bite, because only one fact remains clear, and that is, that all five of the plain-tifPs claims were swallowed up in that one bite, leaving to absolute conjecture how much or what portion of the total general verdict award was attributable to any particular one of the five claims considered by the jury.
Because we are ordering a new trial, we need not address DiSandro’s other and various claims of error.
VII
Conclusion
Having disposed of the issues essential to the resolution of DiSandro’s appeal, we deem it necessary to comment upon the record before us. It is a record that reflects negatively upon DiSandro’s conduct during the course of his lawyer-client representation of Vallinoto. Such conduct, in our opinion, was reprehensible and not in keeping with the professional conduct demanded of attorneys licensed to practice law in our state courts. Nothing stated in our opinion today, which is based solely upon long-settled general principles of law, should be construed in any manner to imply that we condonе such sexual behavior as was visited upon DiSandro’s client during the time when he was representing her and her interests in a most delicate and traumatic divorce action. The bar is cautioned to maintain, in its client relationships, such circumspect conduct that in no instance could cause the public to question the posture of the lawyer in his or her professional role as an advocate. Any appearance of assignation should never be suspect.
We notwithstanding sustain DiSandro’s appeal and vacate the final judgment of the Superior Court. The papers of this case are remanded to that court for a new trial and further proceedings in accordance with this opinion.
Notes
. The plaintiff has attempted to portray herself in this appeal as a helpless, penniless native of Spain, alone in this country without family or friends and limited in English speaking ability. The trial record discloses otherwise. She had attended college in Spain for three years, majoring in psychology, had married in her third year of college, lived in this country for some ten years, learned to speak English, tested for and obtained a state license to sell real estate, and was employed by a local realtor, and after a bitter and tumultuous ten-year marriage, she had filed for divorce. Her parents readily made money available to her in order to engage three different attorneys and at one point deposited $10,000 in a Rhode Island bank account which funds were available to her during her divorce litigation.
. Vallinoto’s complaint also asserted a claim for negligent infliction of emotional distress, but Val-linoto withdrew that count at trial.
. In re DiSandro,
. The fact that she experienced some of the same symptoms during her first marriage is relevant because no medical evidence was presented at trial that established that Vallinoto’s complaints were рroximately caused by her relationship with DiSandro and not by her turbulent marriage to Ledo. Cf. Porrillo v. F.W. Woolworth Co.,
. For an instructive discussion of the origin and nature of that tort, see Kazatsky v. King David Memorial Park,
. We accept as fact that the admitted sexual encounters constituted unconsented batteries because of the jury’s findings.
Dissenting Opinion
dissenting.
I respectfully dissent because I believe that the defendant Edmond A. DiSandro’s sexual depredation of the plaintiff while serving as her divorce attorney constituted a flagrant breach of the fiduciary duties he owed to his client and that this breach constituted legal malpractice. When, as here, a lawyer handling a divorce for a client enters into a sexual relationship with that client, I believe that lawyer has committed legal malpractice, regardless of the legal results obtained and how well the lawyer has performed the necessary legal services.
To reach a contrary result, I would have to perform radical surgery on plaintiffs legal-malpractice claim and downsize it into a shrunken and dismembered professional-negligence cause of action. Further, I would have to lop off from the body of plaintiffs malpractice case the fiduciary duties owed by lawyers to their clients. But I can neither subscribe to such a procrustean, negligence-based vision of the duties arising from the attorney-client relationship nor can I exalt the “successful” results achieved in this litigation over the devious and coercive means employed by the defendant/lawyer to achieve such a pyrrhic victory. Furthermore, I am unwilling to amputate the fiduciary legs from plaintiffs malpractice cause of action, thereby leaving her to jump through the requisite legal hoops with only the bloody stumps of a professional-negligence claim to land on. So hobbled, her malpractice case would inevitably falter.
I believe that this сase presented us with an opportunity to establish, once and for all, that in Rhode Island (as elsewhere) attorneys are fiduciaries charged not only with the duly to perform their work competently but also with “[ujnflinching fidelity to their [clients’] genuine interests.” Berman v. Coakley,
In awarding damages to plaintiff for defendant’s sexual abuse of his client, the jury obviously decided to put this lawyer’s money where his mouth was. Because I cannot say that result was erroneous, I believe we should affirm the judgment and uphold the jury’s verdict finding the defendant/lawyer guilty of having committed legal malpractice, fraud, battery, and intentionally inflicting plaintiff (his own client) with emotional distress.
I
Defendant Committed Legal Malpractice by Breaching the Fiduciary Duties He Owed to His Client
To prevail in a legal-malpractice action, a plaintiff must establish that an attorney-client relationship existed, that the defendant-attorney breached a duty arising out of that relationship, and that as a result of the defendant’s breach the plaintiff suffered harm.
Among the various duties a lawyer owes to a client is the duty to “ ‘at all times * * * represent his client and handle his client’s affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity.’ ” Resolution Trust Corp. v. Holland & Knight,
Here plaintiff alleged, and the jury found, that defendant misused his position of trust as plaintiffs attorney to threaten and deceive her into a sex-for-legal-services relationship, one in which he alternately fiimflammed and coerced her into submitting to his sexual demands in exchange for his continued legal representation of her interests in her divorce and custody ease. Count 5 of plaintiffs complaint, entitled “Legal Malpractice v. DiSan-dro,” expressly alleged that defendant “entered into an attomey/client relationship * * * wherein he promised to represent * * * [plaintiffs] legal interests faithfully and to exercise independent professional judgment on her behalf.” (Emphases added.) She also alleged that by “virtue of his conduct” defendant breached his duty to her by “deceiving her, by engaging in dilatory tactics in the divorce proceeding and in otherwise acting in his own personal interests to the exclusion of hers during the course of his professional representation ” of her. (Emphasis added.) Although plaintiff did not expressly use the term “breach of fiduciary duty” in fashioning her claim for legal malpractice, that is precisely the type of misconduct she alleged in her complaint when she described defendant’s actions. Thus, this was not just a “negligence-based-legal malpractice claim” limited solely to the breach of an attorney’s duty to perform legal services competently, but it was also a claim based on the conflict of interest defendant
The plaintiff testified that when she was initially confronted with defendant’s insistence on a sexual retainer, defendant not only threatened to drop her case but also told her that as he was now her third lawyer, no other attorney would agree to represent her if he refused to do so. The defendant then communicated to plaintiff that if she did not submit to his sexual demands, he would withdraw as her counsel, whereupon she would lose custody of her daughter and be deported to her native Spain. Thereafter, and notwithstanding his ongoing sexual relations with her, defendant prepared answers to interrogatories for plaintiff to sign under oath that falsely represented to opposing counsel and to the Family Court that she had not engaged in sexual relations with any person other than her husband during the couple’s marriage. To justify this perjurious dissembling, defendant also fraudulently misrepresented to plaintiff that she could deny having had sexual relations with him in her sworn interrogatory answers because their postseparation trysts were allegedly “irrelevant” to the pending divorce action and child-custody proceedings. When faced with these facts, the jury and the trial justice understandably had little trouble in rejecting any notion that defendant’s legal representation was kept separate and apart from the sexual relationship he embarked upon with plaintiff.
Indeed, when this court first considered defendant’s conduct, we concluded that by gratifying his own sexual desires with plaintiff while handling her divorce action, defendant created “an inherent conflict with [his] obligation to represent the client properly.”
If I were to accept the suggestion that there is no relevant probative evidence indicating that defendant’s legal services were contingent on plaintiff’s willingness to grant him sexual favors, I would be riding roughshod over what the jury neсessarily decided after assessing the witnesses’ credibility, hearing all the evidence, and returning verdicts on every count in plaintiffs favor. Although defendant claimed that the relationship was purely consensual and that some of plaintiffs greeting cards and other actions showed how she not only agreed to but actually came to relish their “lexual” relationship, the jury and the trial justice were entitled to conclude otherwise. It was their function,
There is also a growing body of case law from other jurisdictions that can be cited for the proposition that the attorney-client relationship, once established, cannot be exploited by the attorney to his own sexual advantage and to his client’s detriment.
Here defendant was president and secretary of DiSandro-Smith & Associates, P.C., Inc., a professional service corporation. In rendering legal services to plaintiff, he breached his fiduciary duties to her and committed legal malpractice. Z. Hershel Smith (Smith), defendant’s only partner in the firm, knew defendant was “dating” plaintiff while her divorce proceeding was pending but failed to inquire further or to take any steps whatsoever to abate the conflict of interest inherent in such a relationship or to avert the deleterious consequences it could have on the client’s interests in the pending divorce proceeding. Both defendant and Smith knew or should have known that they had a duty to avoid this inherent conflict of interest with their client and a duly to withdraw from representation if such a conflict did arise in the course of the legal representation. They failed on both accounts.
Since the corporation itself engages in the rendering of professional services through its officers and agents, under Rhode Island law “the corporate entity will be liable for the misprisions of its members to the extent of the corporate assets.” In re Rhode Island Bar Association,
II
Plaintiff Suffered Damages as a Result of Defendant’s Legal Malpractice
The defendant contends that even if his legal services were a quid pro quo for plaintiffs sexual favors, plaintiffs malpractice claim would still fail because she presented no evidence of damages either to her legal position or to herself personally. But I agree with the jury and the trial justice that plaintiff was indeed damaged by defendant’s misconduct.
First, the jury may well have agreed with plaintiff that defendant puiposely prolonged plaintiffs divorce proceedings to maximize the time and the number of occasions for his own sexual gratification at plaintiffs expense.
The plaintiff also testified, and the jury found, that defendant battered her physically and emotionally, causing her such severe emotional distress that she “was a mess” and suffered recurrent nightmares, nausea, anxiety attacks, shame, terrible headaches, crying fits, shingles,
Further, I disagree with the argument that for plaintiff to recover any damages caused by defendant’s legal malpractice, she must have suffered unsatisfactory results in the underlying divorce action causing her pecuniary loss. Legal malpractice is an action in tort, and an attorney is liable for all types of foreseeable damages proximately caused by his or her wrongful acts or omissions, not just pecuniary losses.
Thus I would affirm the judgment below awarding plaintiff damages for the personal injuries she suffered as a result of defendant’s legal malpractice.
Ill
Defendant’s Intentional Infliction of Emotional Distress upon Plaintiff Resulted in Physical Symptoms That Were Properly Admitted into Evidence
Next, defendant contends that the trial justice erred by submitting plaintiffs claim of intentional infliction of emotional distress to the jury because plaintiff allegedly failed to prove any objective symptoms of physical injury as manifestations of her mental anguish.
Here, by conditioning his legal services on plaintiffs granting him sexual favors, defendant was certainly guilty of outrageous conduct. Equally outrageous were his preparation of false interrogatory answers for plaintiff to sign, his knowing submission of these answers to the court and to opposing counsel, and his threats involving plaintiff’s deportation and loss of custody of her minor child. Such conduct by a lawyer is so reprehensible as to be intolerable in a civilized community.
Moreover, in addition to the elements listed above, a plaintiff alleging an infliction-of-emotional-distress claim in this jurisdiction must also establish that his or her mental anguish objectively manifested itself in the form of some physical ill.
Here, plaintiff presented evidence that the emotional trauma inflicted upon her by defendant manifested itself in the form of various physical ailments. First, she testified that the stress of her relations with defendant caused her to experience recurring nightmares, anxiety attacks, headaches, shingles, nausea, crying fits, and flashbacks. Second, she presented expert testimony from a social worker/sexual-abuse counselor that plaintiff exhibited symptoms of posttraumatic stress disorder that would require years of counseling to remedy.
The defendant contends that absent expert medical testimony, plaintiffs statements regarding her own physical condition were incompetent and inadmissible. Specifically, defendant argues that plaintiff lacked the requisite medical skills necessary to express a valid opinion in regard to whether she had developed shingles, much less to attribute the onset of this condition to defendant’s sexual exploitation of her.
But laypeople lacking medical training have long been allowed to testify to the external and internal characteristics of their own physical condition or to the state of their own health.
In addition, it is widely accepted elsewhere that persons like this plaintiff who claim to suffer from such common ailments as colds, indigestion, headaches, nausea, or skin rashes may testify about the nature and cause of their ailment without the need for expert medical testimony.
Consequently, like any other lay witness, plaintiff was competent to testify about her own physical condition before and after her relationship with defendant and about whether, after her sexual encounters with him, she developed symptoms of extreme nervousness, nausea, skin rashes, sleeplessness, nightmares, and flashbacks. The plaintiff’s testimony in this regard was not an incompetent attempt at a medical self-diagnosis but an effort by her to relate to the jury the various physical symptoms and conditions she experienced following defendant’s physical and emotional abuse of her. Further, considering plaintiffs difficulty with and inexperience in expressing herself in English, the trial justice did not abuse her discretion in affording plaintiff a certain amount of latitude in the manner in which plaintiff described her physical condition to the jury.
IV
The Trial Justice Properly Allowed the Jury to Hear the Social Worker’s Testimony Concerning Plaintiffs Post-traumatic Stress Disorder
The defendant also challenges the admissibility of the testimony of Suzanne Bowman (Bowman), plaintiff’s psychotherapist and social worker. He contends that Bowman’s status as a social worker, as opposed to that of a medical doctor, precludes her from testifying to her opinion that plaintiff suffers from a syndrome known as posttraumatic-stress disorder (PTSD). Citing Ouellette v. Carde,
In the case of In re Jean Marie W., not only was the social-worker expert allowed to testify concerning the patient’s hearsay statements made to her during the course of psychological treatment but we also affirmed the trial justice’s decision to allow the social worker to give her expert opinion and diagnosis that sexual abuse was the cause of her patient’s emotional injuries. Id. Thus, in this jurisdiction, proving the cause of emotional-distress complaints does not require expert medical opinion.
Rule 702 of the Rhode Island Rules of Evidence provides:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or opinion.” (Emphases added.) Accord State v. Porraro,121 R.I. 882 , 892,404 A.2d 465 , 471 (1979).
Whether a witness possesses sufficient knowledge, skill, experience, training, or education to qualify as an expert concerning a particular subject matter rests primarily in the trial justice’s discretion, and absent a showing of abuse this court will not disturb the exercise of that discretion on appeal. State v. Fogarty,
Here, after the trial justice properly qualified Bowman as an expert in the field of psychotherapy, she allowed Bowman to testify that plaintiff suffered from symptoms consistent with PTSD. Bowman based her opinion not only on her formal education and professional training in diagnosing and counseling sufferers of PTSD but also on her own personal observations and treatment of plaintiff during two years of counseling sessions. Bowman’s extensive formal education and her practical experience in the field of psychotherapy support the trial justice’s broad discretion to qualify her as an expert and to admit her testimony as a practicing psychotherapist.
Plainly the trial justice’s decision to admit the social worker’s testimony in this case comports not only with the result in Ouellette but also with our holding in In re Jean Marie W. There, this court held that
“the Family Court justice was properly within his discretion in allowing this [social worker] witness to render a diagnosis based on her status as a registered, independent clinical social worker pursuant to G.L.1956 (1987 Reenactment) chapter 39 of title 5. Her extensive formal education and practical experience in the field of child social work also support this decision.”559 A.2d at 630 n. 8.
The rationale underlying our decisions and those from other states
V
Evidence of Defendant’s Assaults upon Plaintiffs Husband and His Attorney Was Properly Admitted
The defendant also challenges the admission of testimony relating to physical assaults on plaintiffs former husband and threats al
Here plaintiff claimed that she was terrified of defendant and that he tricked and intimidated her into a sexual relationship with him. The defendant, on the other hand, claimed that plaintiffs participation was consensual. Consequently evidence of specific acts of personal intimidation perpetrated by defendant and made in the presence of plaintiff were potentially of critical importance to the consent issue and to both the reasonableness and the credibility of plaintiffs charges of alleged intimidation by defendant. See State v. Tribble,
Here plaintiff testified that following the taking of a deposition held at defendant’s law office, defendant took her former husband’s attorney by the collar and threw him out of the room. She also claimed that outside the courtroom, during court proceedings, defendant assaulted her former husband with a clenched fist and later bragged to her about what he intended to do to him. Although prejudicial to defendant, this evidence was relevant to show the reasonableness of plaintiffs sense of physical intimidation, of her emotional fear of defendant, and of the alleged coercive sway that he held over her.
VI
Because Plaintiffs Battery and Fraud Claims, Standing Alone, Support the Damages Awarded by the Jury, the Judgment Should Be Affirmed and Nо New Trial Should Be Granted — Even if the Malpractice and Emotional-Distress Claims Had Been Improperly Submitted to the Jury
The defendants, DiSandro and DiSandro, Smith & Associates, P.C., Inc., contend that if they are successful in showing that a directed verdict should have been granted on even one of the five counts of wrongdoing that were submitted to the jury, then they are entitled to a new trial on the remaining counts. They assert that Reynolds v. Missler,
However, this is decidedly not the situation we have here. In both Missler and Pinkerton’s, general verdicts were returned in favor of the plaintiff without any special findings made by the jury in regard to the defendant’s liability on each of the separate causes of action for which damages had been sought.
But in contrast to Missler and Pinkerton’s, here special interrogatories were submitted to the jury concerning each count that it was to consider, and the jury’s answers to these interrogatories disclosed that it found defendant to be liable on each of the separate theories of recovery that plaintiff presented — namely, battery, intentional infliction of emotional distress, legal malpractice, and fraud. It also found the law firm liable for having committed legal malpractice. The plaintiff was awarded $25,000 in compensatory damages against both defendant and the law firm and $200,000 in punitive damages against defendant alone.
In fact the evidence in support of plaintiffs damages was identical for each count and would not have varied one iota whichever theory or theories of liability were allowed to go to the jury. Nor is there any evidence whatsoever of any duplicative or multiple recovery in the jury’s award. In any case, defendant never objected to the form of the verdict or to the special interrogatories that were submitted. Consequently he has waived any claim based on this theory, and I cannot see why a new trial should be required on the battery and fraud claims.
Indeed, we have said that the very purpose of having a trial justice submit written interrogatories to the jury (together with a request for a general verdict) is to avoid “[s]uch a crisis of uncertainty” about which counts, if any, the jury finds a defendant to be liable. Seabra v. Puritan Life Insurance Co.,
Conclusion
For these reasons I would reject the defendants’ arguments on appeal, uphold the trial justice’s rulings, and affirm the judgment below.
. In this case, the defendant’s legal services included having his client sign and submit false interrogatory answers to the court and to opposing counsel for the purpose of concealing their sexual relationship. After the defendant spuriously advised the plaintiff — a foreign-bom, Spanish-speaking woman with a limited ability to converse in English — that her postseparation sexual relationship with him was "irrelevant" to her divorce and custody case, he prepared these bogus answers and gave them to her to sign. Pursuant to the defendant’s fraudulent legal advice, and notwithstanding her ongoing sex-for-legal-services relationship with the defendant, the
. Accord Resolution Trust Corp. v. Holland & Knight,
. Upon the formation of an attorney-client relationship, the attorney owes his or her client duties that tend to fall into three general categories: (1) the duty of care, (2) the duty of loyalty, and (3) the duties embodied in any contract that is created concerning the terms of the attorney’s engagement. Owen v. Pringle,
. As a fiduciary, attorneys “are required to conduct themselves according to the highest ethical and moral standards.” Bank of Mill Creek v. Elk Horn Coal Corp.,
"It is a matter of profound importance from every point of view that members of the bar be * * * of probity and rectitude, jealous to maintain relations of utmost honesty with their clients and solicitous to protect them against legal wrong. Unflinching fidelity to their genuine interests is the duty of every attorney to his clients. Public policy hardly can touch matters of more general concern than the maintenance of an untarnished standard of conduct by the attorney at law toward * * * client[s]. The attorney and client do not deal with each other at arm's length. The client often is in many respects powerless to resist the influence of his attorney. If that influence be vicious, untoward, [or] criminal, the relation of trust is abused and becomes the source of wrong." (Emphasis added.) Berman v. Coak-ley,243 Mass. 348 ,137 N.E. 667 , 670-71 (1923).
An attorney’s pursuit of interests adverse to or conflicting with his or her client’s interests constitutes a breach of the attorney’s fiduciary obligations to that client and exposes the attorney to liability for legal malpractice. See, e.g., Fielding v. Brebbia,
. We recently sanctioned defendant for violating the applicable ethical rules of professional conduct in his actions toward plaintiff. In doing so, we noted that even if (contrary to what the jury found here) a divorce attorney’s sexual relationship with a client is consensual, such a relationship “creates an inherent conflict” with the client’s interests in maximizing his or her share of the marital property distribution and in obtaining custody of any children of the marriage. In re DiSandro,
"[a]n attorney who engages in sexual relations with his or her divorce client places that client's rights in jeopardy. The lawyer's own interest in maintaining the sexual relationship creates an inherent conflict with the obligation to represent the client properly. When an attorney represents a divorce client in a case in which child custody, support, and distribution of marital assets are at issue, the attorney must refrain from engaging in sexual relations with the client or must withdraw from the case.” (Emphases added.) DiSandro,680 A.2d at 75 .
Given the "inherent conflict” created by defendant’s legal representation of plaintiff in her divorce case while engaging in sexual relations with her, I believe he could not possibly have kept his legal representation separate and apart from his personal relationship with plaintiff. Indeed, if a lawyer has an "inherent conflict,” this means that it is impossible for the lawyer to keep the conflicting interests separate and apart. Moreover, defendant’s preparation of false interrogatory answers denying any such extramarital sexual relationship refutes any suggestion that he was able to keep his sexual relationship with plaintiff separate from his legal services on her behalf. Finally, the gist of plaintiff's testimony was that defendant’s numerous requests for office consultations and other parleys alone with plaintiff to discuss her case were all pretexts for defendant to ravish her. This is precisely why we concluded that defendant's "own interest in maintaining the sexual relationship create[d] an inherent conflict with the obligation to represent the client properly.” DiSandro,
. Because defendants are challenging the denial of their new-trial motion, all the facts must be viewed in a light most favorable to plaintiff, and all reasonable inferences must be drawn in her favor. See, e.g., Long v. Atlantic PBS, Inc.,
. See, e.g., McDaniel v. Gile,
.The defendant's reliance on Suppressed v. Suppressed,
. The evidence established that defendant recorded approximately 430 hours and thirty-eight court appearances for what the jury might have justifiably concluded was a relatively straightforward, no-fault divorce. Regarding the length of the case and her role in it, plaintiff testified that she "never knew what was going on” and that "[t]he time goes by, by, by, nothing happened.”
. "Shingles" is a colloquial term sometimes used by lay persons to describe a skin eruption. See Doe v. Johnson,
. See, e.g., Fishman v. Brooks,
.See, e.g., Wagenmann v. Adams,
. At trial, plaintiff withdrew her claim of negligent infliction of emotional distress.
. Cf. Singleton v. Foreman,
. E.g., Clift v. Narragansett Television, L.P.,
. Note, however, that in an action like this one for intentional infliction of emotional distress, this reluсtance should diminish (if not vanish altogether) because now the wrongful conduct is not unintentional but deliberate. Thus, the growing trend among many jurisdictions has been to permit plaintiffs claiming intentional infliction of emotional distress to recover damages for their mental anguish without first requiring them to prove that they suffered from any accompanying physical injuries. See Ctift,
. See, e.g., Stuckey v. Rhode Island Co.,
. See State v. Orsini,
. Fоr these same reasons nonexperts have been permitted to testify about the cause of numerous injuries. Wagner Electric Corp. v. Snowden,
. Bowman was licensed as Certified in Social Work in Rhode Island and as a Licensed Independent Clinical Social Worker in Massachusetts for approximately ten years. She has an undergraduate degree from Brown University and a master's degree in social work from Boston University. Before starting her own psychotherapy practice, Bowman participated in several supervised internships and engaged in over 3,000 supervised hours of clinical social work. She specialized in counseling individuals who had been sexually abused or who suffered from drug addictions or eating disorders.
. After qualifying Bowman as an expert witness in the field of psychotherapy and immediately following Bowman’s testimony concerning plaintiff’s PTSD, the trial justice, in denying defendant's motion to strike the testimony, commented:
"I'm going to overrule you [that is, not strike Bowman’s testimony] and I'll probably regret it. She was not qualified to testify, but I’ll let her[,] * * * and * * * [the jury can] consider it for whatever it’s worth.”
It should be noted, however, that these comments were uttered immediately after defense counsel argued that Ouellette v. Carde,
Moreover, Bowman candidly told the jury that she was not a licensed physician and therefore could not dispense medication or render medical diagnoses. Nonetheless, she stated that she was
. Rhode Island does not stand alone in its decision to allow social workers and other licensed and professional counselors and therapists who are not physicians to testify concerning treatment and diagnosis of emotional-trauma syndromes like PTSD. See, e.g., Knock v. Knock,
. Rule 404(b) of the Rhode Island Rules of Evidence provides in pertinent part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable."
In like manner Rule 405(b) states:
“In cases in which character or a trait [of] character of a person is an essential element of a charge, claim, or defense, or when evidence is offered under Rule 404(b), proof may also be made of specific instances of the person’s conduct.”
. Although relevant evidence may be excluded on the ground that its probative value is substantially outweighed by the danger of unfair prejudice, R.I.R.Evid. 403, unless such evidence is of "marginal relevance and enormously prejudicial, the trial justice should not act to exclude it." Wells v. Uvex Winter Optical, Inc.,
. In Welsh Manufacturing, Division of Textron, Inc. v. Pinkerton’s, Inc.,
. Missler is also distinguishable because, unlike the claims in this case, the count improperly submitted to the jury there “was totally foreign to and inconsistent with the cause of action on trial,” Reynolds v. Missler,
"In the peculiar circumstances of this case it is unnecessary to decide whether special findings were necessary to determine the existence of prejudicial error and whether plaintiffs or defendant had the burden to request such findings. These might be appropriate questions where all the counts in a declaration are consistent and proper under the action stated in the writ [that is, they all arise out of one factual context], but not where, as here, a count for an entirely different cause of action is imported into the declaration without legal justification * * *.” Id. at 63,90 A.2d at 781 .
.According to the judgments entered by the Superior Court, the compensatory-damage award ran against "defendants Edmond DiSan-dro, et al[J,” while the punitive damage award ran against "defendant Edmond DiSandro, et al." However, before deliberations, the trial justice’s instructions made clear that punitive damages could be assessed only against defendant and not against defendant's law firm.