836 N.W.2d 8 (Iowa 2013)
Klever Miranda and Nancy Campoverde are Ecuadorian citizens who emigrated to the United States.1 Their children, including Cesar, joined them in 1995.2 Cesar was fourteen years old at the time.3 In 1998, Klever and Nancy gave birth to another son, Ronaldo, in the United States.4
Klever initially obtained employment under a pseudonym.5 He eventually began to take action to obtain legal immigration status with the aid of an attorney.6 At some point in the late 1990s, Klever obtained legal authorization to work in the United States but later lost that status.7 Klever also filed an asylum application.8 In 2005, Klever received notice of a removal order.9 He was represented by attorney Michael Said.10
Said advised Klever that the best plan of action would be for him to return to Ecuador and have Cesar sponsor him and Nancy for citizenship once Cesar obtained citizenship.11 He advised Klever that Cesar could file a document called Form I-130.12 According to Said, Klever and Nancy could then each file a document called Form I-601 waiver.13 Said allegedly told Klever and Nancy his plan contained no risks and had a ninety-nine percent chance of success.14 Said allegedly explained the plan would only fail if Cesar was not related to Klever and Nancy or had committed a crime in the United States or Ecuador.15 Before Nancy left in 2007, Said completed the Form I-601 waiver documents so she could have them in her possession to file with the Ecuadorian consulate once Cesar became a citizen.16 Said also prepared a memorandum for each waiver application.17 Klever and Nancy paid Said $11,000 for his legal services.18
Cesar became a citizen a short time later.19 He promptly filed the Form I-130 documents Said had prepared in advance.20 Klever and Nancy then each filed the Form I-601 with the Ecuadorian consulate.21 However, their applications were denied.22 The Ecuadorian consulate also informed Klever and Nancy that they were subject to a ten-year bar to readmission because they had left the United States voluntarily.23 Klever and Nancy later learned that Form I-601 waivers are only available when the qualifying relative is the spouse or parent of the applicant.24 The Form I-601 applications prepared by Said listed Cesar and Ronaldo as qualifying relatives.25 In truth, Klever and Nancy had no qualifying relatives.26 As a part of their case, Klever and Nancy called an expert witness who opined that the strategy pursued by Said likely had no chance of success.27 Said admitted at trial he knew Cesar and Ronaldo were not qualifying relatives.28 He also stipulated that no reasonable attorney would have attempted to use a Form I-601 to obtain lawful residency for Klever and Nancy.29 Klever, Nancy, and Cesar brought a legal malpractice action against Said.30 The action included a claim for emotional distress damages, as well as punitive damages.31 Prior to submitting the case to the jury, the district court granted Said’s motion for directed verdict on the claims for emotional distress and punitive damages.32 Ultimately, the jury found Said negligent and awarded Klever and Nancy $12,500.33 Klever and Nancy appealed.34 We transferred the case to the court of appeals.35 It reversed the district court decision and found that the claims for emotional distress and punitive damages should have been submitted to the jury.36 Said sought, and we granted, further review.37
Whether a contract for legal services in the immigration context is the kind of special relationship in which emotional distress is foreseeable?38
Emotional distress damages are recoverable in a negligence action absent physical injury when the nature of the relationship and the transaction undertaken show that negligent conduct is especially likely to cause severe emotional harm.39 This occurs when the subject matter of the contract is personal rather than pecuniary.40 A breach will necessarily or reasonably result in mental anguish that the parties should have contemplated from the outset.41
Yes. The attorney-client relationship between Said and Klever and Nancy centered on a plan to reunite the family through immigration filings that directly implicated the prolonged separation of parents from their United States citizen children and grandchildren.42 Said prepared detailed memorandums describing the extreme hardship that would follow denial, including the children's inability to speak Spanish, loss of educational and health resources in Ecuador, and risks of depression and behavioral problems from parental absence.43 Said knew the Form I-601 waivers listed only the clients' children as qualifying relatives, a category the statute does not recognize, yet he repeatedly assured Klever and Nancy that the plan carried a ninety-nine percent chance of success and no risks beyond familial relationship or criminal history.44
This course of conduct placed the clients directly in harm's way, rendering emotional distress a particularly likely and foreseeable consequence of the negligence rather than a harm one step removed through independent governmental action.45 The facts therefore satisfy the exception recognized for relationships charged with personal solicitude, such as those involving family unity and immigration status, and distinguish the case from situations where the claimed distress arose only after an intervening event.46
The district court erred in granting a directed verdict on the emotional distress claim, and the case must be remanded for a new trial that includes that element of damages.47
Related opinions on this issue
Justice Waterman dissented on the ground that the immigration malpractice claim does not fall within the narrow Lawrence exception reserved for extremely emotional circumstances such as the negligent handling of a newborn's birth and death in Oswald.48 He emphasized that the vast majority of jurisdictions refuse emotional distress recovery in legal malpractice absent intentional conduct, physical injury, or particularly egregious behavior.49 Justice Waterman warned that extending the exception here would chill attorneys' willingness to practice immigration law, raise malpractice premiums, and reduce access to representation for noncitizens.50
Justice Waterman would have affirmed the district court's directed verdict.51 He would limit any expansion of emotional distress liability to the specific facts of family separation caused by egregiously bad advice while preserving the general rule against such awards in ordinary professional negligence cases.52
Whether punitive damages were appropriate in the case?53
Punitive damages may be submitted to the jury when the plaintiff proves by clear and convincing evidence that the defendant's conduct constituted willful and wanton disregard for the rights or safety of another.54 This is shown by an intentional act of unreasonable character in disregard of a known or obvious risk so great that harm was highly probable and accompanied by conscious indifference to the consequences.55
Yes. Said admitted at trial that he knew Cesar and Ronaldo were not qualifying relatives under the statute governing Form I-601 waivers and that no reasonable attorney would have pursued the strategy.56 Yet he advised Klever and Nancy to leave the United States and file the applications while assuring them of a ninety-nine percent likelihood of success.57 He failed to produce any documentation supporting his claim of ten to fifteen prior successful uses of children as qualifying relatives despite a court order to do so.58 This permitted the inference that the records did not exist and that his representations to the clients were false.59
The expert testimony established that the plan had no legitimate chance of success and that any discretionary grant would later be detected, resulting in deportation rather than citizenship.60 This evidence supports a finding that Said pursued a meritless course of action with knowledge of its statutory invalidity.61 The conduct manifested heedless disregard for the clients' rights in the face of the obvious risk of ten-year separation from their family.62 The district court therefore erred in removing the punitive damages claim from the jury.63
The district court erred in granting a directed verdict on the punitive damages claim, and the issue must be submitted to the jury on remand.64
Related opinions on this issue
Justice Waterman noted that the majority's holding permits a jury to find Said's conduct reckless enough to satisfy the willful-and-wanton standard for punitive damages under Iowa Code section 668A.1(1)(a).65 While agreeing that the negligence finding itself stands unchallenged, he maintained that the same policy concerns counseling against emotional distress recovery in ordinary legal malpractice cases also counsel restraint in expanding punitive exposure.66 He warned that the threat of open-ended liability could deter lawyers from accepting immigration matters and thereby impair access to justice for vulnerable clients.67