Amended September 5, 2017 Melissa Stender v. Anthony Zane Blessum ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–2016
Filed June 16, 2017
Amended September 5, 2017
MELISSA STENDER,
Appellant,
vs.
ANTHONY ZANE BLESSUM,
Appellee,
MINNESOTA LAWYERS MUT. INS. CO.,
Intervenor-Appellee.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
A jury trial was held on plaintiff’s claims of legal malpractice,
assault and battery, and punitive damages. The jury returned verdicts in
favor of the defendant on the submitted legal malpractice claims and in
favor of the plaintiff on the assault and battery claim. The jury also
awarded the plaintiff damages and punitive damages. The plaintiff
appeals and the defendant cross appeals. AFFIRMED.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C., Des
Moines, and Laurie Anne Stewart of Stewart Law & Mediation, P.L.L.C.,
Panora, for appellant.
David L. Brown and Alexander E. Wonio of Hansen, McClintock &
Riley, Des Moines, for appellee.
2
Richard J. Thomas of Burke & Thomas, PLLP, Arden Hills,
Minnesota, for intervenor-appellee.
3
ZAGER, Justice.
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.
I. Background Facts and Proceedings.
In September 2008, Melissa Stender met with attorney Anthony
Zane Blessum for legal assistance in a divorce proceeding against her
then-husband, Phillip Stender. 1 Blessum had previously represented
Phillip in a separate legal matter. In October, Blessum filed a petition for
1For clarity, in this opinion we refer to the parties by their last names and refer
to Stender’s ex-husband as Phillip.
4
dissolution of marriage on Stender’s behalf. As noted in the petition, the
parties were married in 1993. Blessum did not conduct any written
discovery, take depositions, or obtain financial affidavits in the case.
In February 2009, Blessum drafted a proposed divorce decree and
sent it to both Stender and Phillip. On March 4, Blessum sent a second
proposed divorce decree that included changes that Blessum had not
discussed with Stender. Stender was unaware that Blessum had made
changes in the second proposed divorce decree and believed the changes
unfairly favored Phillip. When Phillip received the second proposed
decree, he went to the couple’s home and physically and sexually
assaulted Stender.
On March 25, Stender signed the second proposed decree upon the
advice of Blessum. Stender testified at trial that she was a homemaker
for most of her marriage to Phillip. She testified she was unaware of the
amount in Phillip’s retirement accounts, the state of the household
finances, or the amount of alimony to which she might be entitled. She
signed the decree based on Blessum’s advice that the contents of the
decree represented everything she was entitled to receive in the divorce.
The final divorce decree awarded Stender $110,000 from Phillip’s
retirement account, half of the home furnishings, and $400 per week in
spousal support for a period of four and one-half years. The decree
awarded Phillip all of the other accounts and the majority of the other
assets of the marriage including the family home, a number of vehicles
and motorcycles, and farm equipment. Blessum filed the decree on
March 30. However, Blessum failed to prepare or file a Qualified
Domestic Relations Order (QDRO) to document Stender’s interest in
Phillip’s retirement account. Stender was unaware that Blessum had not
prepared or filed the QDRO.
5
Approximately two years later, in mid-March 2011, Blessum called
Stender. Blessum informed Stender that Phillip had called to ask if he
would receive the entire balance of his retirement account if “something
happened” to Stender. Stender was afraid of Phillip after the assault and
asked Blessum if he believed Phillip’s call was threatening. Blessum told
her that was exactly how he took the call. Stender became concerned
about how her assets would be divided among her three children if she
were to pass away and asked Blessum if she needed a will. Blessum
responded in the affirmative.
Stender met with Blessum on March 22 to discuss drafting a will.
Stender told Blessum that she wanted all of her estate assets divided
equally between her three children. Based on Blessum’s advice, Stender
believed that Phillip would get all of her assets after her death if she did
not draft a will. This was inaccurate because, even if Stender had died
intestate, Stender’s probate assets would have been equally divided
between her three children. 2 However, the issue of Stender’s interest in
Phillip’s retirement account had still not been addressed by entry of a
QDRO.
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
2See Iowa Code § 633.219(1) (2011).
6
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 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.
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.
3See Iowa Code § 614.1(2). Also, Stender claims she did not know that Blessum
had sent the letter to Phillip or have any knowledge of its contents. She claims she did
not request that Blessum draft such a letter, nor did she give her permission. The
record does not reflect whether any action was taken on this letter.
7
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.
Blessum went to the kitchen to get a glass of water to force Stender
to vomit. After he left the room, Stender grabbed Blessum’s home phone
and called 911. She was unaware whether the call went through but left
it under a pile of papers when she heard Blessum returning to the living
room. The call connected and the remainder of the assault was recorded.
Police were dispatched to Blessum’s house. Before the police responded,
Blessum pinned Stender to the couch and strangled her. He then
poured water down her throat and put his fingers in her mouth in an
attempt to make her vomit. Stender kept screaming in hopes that the
call had connected to the 911 operator. Blessum again pinned Stender
with his knees and bound her arms over her head. He began to
forcefully remove her jeans. Blessum had removed her jeans past her
hips when the police knocked on the door. Stender began screaming for
8
help. The police arrested Blessum at the scene. The police also called an
ambulance, and Stender was transported to the hospital for medical
treatment.
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. On October 29, the district
court entered a protective order by consent agreement between the
parties.
Stender obtained new counsel in October and her new counsel
began requesting Stender’s client files from Blessum. Blessum delivered
the client files in January 2013, but the documents related to the
preparation of Stender’s will were missing.
On January 14, the State filed criminal charges against Blessum
for the assault against Stender. Blessum was charged with assault
causing bodily injury, see Iowa Code § 708.2(2), and assault with intent
to commit sexual abuse, see id. § 709.11(2). Blessum ultimately pleaded
guilty to assault causing bodily injury. On March 26, Blessum was
sentenced to one year in jail with all but seven days suspended. A
sentencing no contact order was also entered on that date restraining
Blessum from any contact with Stender for five years.
On December 4, Stender filed this civil action against Blessum.
She alleged claims of domestic assault, battery, false imprisonment,
negligent transmission of sexually transmitted diseases, outrageous
9
conduct and intentional infliction of emotional distress, legal
malpractice, and breach of fiduciary duty.
On March 27, 2015, we suspended Blessum’s license to practice
law for eighteen months. Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Blessum, 861 N.W.2d 575, 595 (Iowa 2015). We found he violated three
of our Iowa Rules of Professional Conduct. Id. at 577. Blessum violated
rule 32:1.8(j) (sexual relationship with a client), rule 32:8.4(b) (criminal
act adversely reflecting on a lawyer’s fitness to practice law), and rule
32:1.15(c) (trust account practices). Id. at 588–91.
On June 25, Stender voluntarily dismissed two claims in her civil
lawsuit: the claim for false imprisonment and the claim for negligent
transmission of sexually transmitted diseases. Trial was set to
commence on July 6.
On July 2, Stender’s counsel posted a Facebook message
expressing her dissatisfaction with the outcome of Blessum’s attorney
disciplinary case. The Facebook post also stated “I hope a jury will be a
little harder on him!” Blessum moved for a continuance of the trial,
which the district court granted, noting that the timing of the post was
“disturbing and suspicious.” The trial was rescheduled for November 2.
On October 29, Stender voluntarily dismissed her claims for outrageous
conduct and intentional infliction of emotional distress.
Jury trial commenced on November 2, and Stender concluded her
presentment of evidence on November 10. Blessum moved for a directed
verdict on all of the legal malpractice claims and on the breach-of-
fiduciary-duty claim. The district court granted a directed verdict on the
legal malpractice claim regarding the preparation of the will and on the
breach-of-fiduciary-duty claim. The district court concluded that, with
regard to the drafting of the will, there was no evidence that the will
10
contained any defect or that its preparation otherwise fell below the
standard of care for attorneys. The district court also granted a directed
verdict on the claim for breach of fiduciary duty. The district court
concluded that there was not a “single piece of evidence that the plaintiff
suffered emotional damage from just being in a relationship.” The
district court denied the motion for directed verdict on two additional
claims of legal malpractice.
On November 13, the Friday before closing arguments were set to
commence, the Des Moines Register published an online opinion article
comparing the jury trial to the disciplinary case and noting that
“hopefully the jury will do something more.” On Sunday, November 15,
the article was published in the print version of the newspaper.
On November 16, the jury heard closing arguments. The district
court submitted four claims for the jury to consider: (1) legal malpractice
in Blessum’s representation of Stender in her divorce, (2) legal
malpractice in Blessum’s representation of Stender in her potential claim
for assault or battery against her ex-husband, (3) assault and battery by
Blessum, and (4) punitive damages. On November 17, the jury returned
its verdicts. The jury decided in Blessum’s favor on the two legal
malpractice claims. The jury returned verdicts in Stender’s favor on the
assault and battery claim and on the punitive damages claim. The jury
awarded Stender $398,562.44 for the assault and battery and $100,000
in punitive damages, for a total award of $498,562.44.
On November 18, one of the jurors contacted the district court
judge to convey that he had a hard time sleeping the night the jury
reached its verdicts, and he felt as though justice had not been served.
Specifically, the juror believed five of the six jurors did not agree with the
amount of damages that were ultimately awarded to Stender. The juror
11
also believed that the Des Moines Register article played a role in the jury
deliberations because he claimed a number of jurors had read the article
prior to deliberating. Because of the juror’s concerns, the district court
set a hearing on the matter for November 23.
On November 25, before the district court issued its ruling,
Stender filed a notice of appeal, thus depriving the district court of
jurisdiction to hear any posttrial matters, including the issues raised by
the juror. In her appeal, Stender claims that the district court erred in
granting the directed verdicts. Blessum cross-appealed for a new trial on
the issue of damages awarded for the assault and battery and punitive
damages claims. We retained the appeal.
II. Standard of Review.
We review a ruling on a motion for a directed verdict for correction
of errors at law. Hook v. Trevino, 839 N.W.2d 434, 439 (Iowa 2013). “We
review the evidence in the light most favorable to the nonmoving
party . . . .” Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835
N.W.2d 293, 300 (Iowa 2013). In doing so, we take into consideration all
reasonable inferences the jury could fairly make, regardless of whether
there is any evidence in contradiction. Id. Ultimately, we decide whether
the district court’s determination that there was or was not sufficient
evidence to submit the issue to the jury was correct. Id.
We review evidentiary rulings for an abuse of discretion. Giza v.
BNSF Ry., 843 N.W.2d 713, 718 (Iowa 2014). A district court abuses its
discretion when it bases its decisions on grounds or reasons clearly
untenable or to an extent that is clearly unreasonable. Sioux Pharm, Inc.
v. Eagle Labs., Inc., 865 N.W.2d 528, 535 (Iowa 2015). A district court
also abuses its discretion if it bases its conclusions on an erroneous
application of the law. Id.
12
When we review claims for excessive damages, “we view the
evidence in the light most favorable to the plaintiff.” Kuta v. Newberg,
600 N.W.2d 280, 284 (Iowa 1999). We should not “disturb a jury verdict
for damages unless it is ‘flagrantly excessive or inadequate, so out of
reason so as to shock the conscience, the result of passion or prejudice,
or lacking in evidentiary support.’ ” Id. (quoting Olson v. Prosoco, Inc.,
522 N.W.2d 284, 292 (Iowa 1994)). We apply an abuse of discretion
standard because the trial court had the advantage of seeing and hearing
the evidence. Id.
III. Analysis of the Rulings on the Motions for Directed
Verdicts.
Stender claims the district court erred in granting the motions for
directed verdict for a number of reasons, which we address in turn.
A. Per Se Legal Malpractice. Stender argues that the existence
of an attorney–client sexual relationship forms a per se basis for her legal
malpractice and breach-of-fiduciary-duty claims. While we have
precedent recognizing that a violation of our ethical rules can be used as
some evidence of negligence, Stender argues we should take that
reasoning one step further and hold that a violation of the Iowa Rules of
Professional Conduct can be introduced as per se evidence of legal
malpractice in civil cases. As part of our analysis, it is important to
provide some context to this requested relief.
1. Iowa background. We have decided a number of cases involving
our ethical rules and claims of legal malpractice. While we have
generally allowed violations to be used as evidence of negligence, we have
been careful to caution that evidence of negligence is not the same as
conclusive proof of negligence. See Ruden v. Jenk, 543 N.W.2d 605, 611
13
(Iowa 1996); see also Vossoughi v. Polaschek, 859 N.W.2d 643, 649–50
(Iowa 2015); Faber v. Herman, 731 N.W.2d 1, 7 (Iowa 2007).
To establish a prima facie claim for legal malpractice, a plaintiff
must produce substantial evidence demonstrating: (1) an attorney–client
relationship existed giving rise to a duty; (2) the attorney violated or
breached the duty, either by an overt act or a failure to act; (3) the
breach of duty proximately caused injury to the client; and (4) the client
did sustain an actual injury, loss, or damage. Trobaugh v. Sondag, 668
N.W.2d 577, 580 n.1 (Iowa 2003).
In Ruden, we held that the plaintiff could use a violation of the
Iowa Code of Professional Responsibility for Lawyers as evidence of
negligence, but ultimately held that the attorney’s acts or omissions were
not sufficient to demonstrate proximate cause of any damages as a
matter of law. Id. at 611–12. We also cautioned that while a violation
may constitute “some evidence of negligence,” our ethical rules “do[] not
undertake to define standards of civil liability.” Id. at 611 (emphasis
added). In Crookham v. Riley, we again noted that a violation of our
disciplinary rules is “some evidence of negligence.” 584 N.W.2d 258, 266
(Iowa 1998). We noted that expert testimony on the standard of care due
to a client is normally required for a legal malpractice claim. Id.
Additionally, the language of the Iowa Rules of Professional
Conduct expressly addresses this issue. This language provides,
Violation of a rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption
in such a case that a legal duty has been breached. In
addition, violation of a rule does not necessarily warrant any
other nondisciplinary remedy, such as disqualification of a
lawyer in pending litigation. 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. Furthermore, the
purpose of the rules can be subverted when they are invoked
14
by opposing parties as procedural weapons. The fact that a
rule is a just basis for a lawyer’s self-assessment, or for
sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a
collateral proceeding or transaction has standing to seek
enforcement of the rule. Nevertheless, since the rules do
establish standards of conduct by lawyers, a lawyer’s
violation of a rule may be evidence of breach of the
applicable standard of conduct.
Iowa R. Prof’l Conduct ch. 32 Scope [20]. This is similar to the scope
contained in the ABA Model Rules of Professional Conduct. The model
rules provide that a “[v]iolation of a [r]ule should not itself give rise to a
cause of action against a lawyer nor should it create any presumption in
such a case that a legal duty has been breached.” Model Rules Prof’l
Conduct Scope [20] (Am. Bar Ass’n 2014). The model rules also provide
that the rules were not designed to be used as a basis for civil liability.
Id. The rules may instead be used as evidence of a breach of the
standard of conduct. Id.
2. Approach of other states. There are three approaches courts
use to determine whether a violation of an ethical rule may be used to
establish a per se private cause of action for legal malpractice. First, one
jurisdiction allows the violation of an ethical rule to create a rebuttable
presumption of negligence. Hart v. Comerica Bank, 957 F. Supp. 958,
981 (E.D. Mich. 1997) (noting that violations of the ethical rules “create a
rebuttable presumption of legal malpractice, although they do not
constitute negligence per se”). 4 A second approach, adopted by a larger
number of courts, is that ethical rule violations are inadmissible in legal
malpractice claims. See Ex parte Toler, 710 So. 2d 415, 416 (Ala. 1998)
4See also Mainor v. Nault, 101 P.3d 308, 320 (Nev. 2004) (noting that “[a]t least
one jurisdiction has held that a violation of a professional rule creates a rebuttable
presumption of negligence,” in reference to the Hart case), abrogated on other grounds
by Delgado v. Am. Family Ins. Grp., 217 P.3d 563, 567 (Nev. 2009).
15
(holding that the trial judge properly excluded evidence of a violation of
the rules of professional conduct because such evidence cannot be used
in a legal malpractice action); Orsini v. Larry Moyer Trucking, Inc., 833
S.W.2d 366, 369 (Ark. 1992) (holding that it was proper for the trial court
to refuse to admit into evidence the model rules of professional conduct
because such rules were meant as guidelines only and were not meant to
establish a civil cause of action for malpractice); Webster v. Powell, 391
S.E.2d 204, 208 (N.C. Ct. App. 1990) (holding that the trial court
properly excluded evidence of a violation of an ethical rule because such
a breach is not a basis for civil liability); Hizey v. Carpenter, 830 P.2d
646, 652–54 (Wash. 1992) (en banc) (holding that the jury not be
informed of rules of professional conduct, either through jury
instructions or expert testimony, because the rules were guidelines and
provided an ethical standard distinct from the civil standard). But
overwhelmingly, a third approach is that the violation of an ethical rule
alone does not establish a per se private cause of action for legal
malpractice but may be used as relevant evidence for the standard of
care. Accordingly, a number of state supreme courts, 5 state appellate
5Allenv. Lefkoff, Duncan, Grimes & Dermer, P.C., 453 S.E.2d 719, 720–21 (Ga.
1995) (noting that the rules of professional conduct were relevant to the standard of
care but declining to hold a violation can be the sole basis for per se negligence);
Mainor, 101 P.3d at 321 (holding the district court was correct in determining the rules
of professional conduct “were not meant to create a cause of action for civil damages . . .
because the rules serve[] merely as evidence of the standard of care, not as a basis for
per se negligence”); Bob Godfrey Pontiac, Inc. v. Roloff, 630 P.2d 840, 848 (Or. 1981)
(“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.”); Diluglio v. Providence Auto Body, Inc., 755 A.2d 757, 772
n.16 (R.I. 2000) (“[V]iolations of the rules of professional conduct cannot be used to
establish a cause of action or to create any presumption that a legal duty has been
breached . . . .”); Vallinoto v. DiSandro, 688 A.2d 830, 837 (R.I. 1997) (“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
16
courts, 6 and federal courts 7 have held that the violation of an ethical
rule, without more, is insufficient to establish a per se cause of action for
legal malpractice.
We likewise 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
_________________________________
cause of action for damages sounding in negligence for breach of fiduciary obligation.”);
Strohm v. ClearOne Commc’ns, Inc., 308 P.3d 424, 442–43 (Utah 2013) (“Violation of a
rule should not itself give rise to a cause of action against a lawyer nor should it create
any presumption in such a case 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.” (quoting Utah R. Prof’l Conduct Preamble)).
6Hill v. Willmott, 561 S.W.2d 331, 334 (Ky. Ct. App. 1978) (“[A] duty set forth in
the Code and the Rules establishes the minimum level of competence for the protection
of the public and a violation thereof does not necessarily give rise to a cause of action.”);
Spencer v. Burglass, 337 So. 2d 596, 599 (La. Ct. App. 1976) (“Plaintiff has cited no
authority for her proposition that these standards provide her with a cause of action
under a general tort or negligence concept.”); Gifford v. Harley, 404 N.Y.S.2d 405, 407
(App. Div. 1978) (“Plaintiff’s argument that violations of our civil practice code give rise
to liability is far afield.”); Martin v. Trevino, 578 S.W.2d 763, 770 (Tex. Civ. App. 1978)
(“[T]he violation by an attorney of the disciplinary rules adopted by the Texas Supreme
Court does not of itself create a private cause of action.”).
7Universal Mfg. Co. v. Gardner, Carton & Douglas, 207 F. Supp. 2d 830, 832–33
(N.D. Ill. 2002) (stating that while an alleged violation of ethical rules does not by itself
give rise to a claim for malpractice under Illinois law, “the rules of professional conduct
may be relevant to determining the standard of care in a legal malpractice claim”);
Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F. Supp. 2d 831, 836 (N.D. Ohio
2001) (“Violations of the rules of the Code of Professional Responsibility, however, do
not constitute malpractice per se.”).
17
one that both our rules and our cases have specifically rejected. Id.
(“Violation of the disciplinary rules constitutes some evidence of
negligence. In a legal malpractice action, expert testimony upon the
standard of care is usually required.” (Citation omitted.)); Ruden, 543
N.W.2d 611 (“Although the Iowa Code of Professional Responsibility for
Lawyers does not undertake to define standards of civil liability, it
constitutes some evidence of negligence.”); Iowa R. Prof’l Conduct ch. 32
Preamble & Scope [20] (“Violation of a rule should not itself give rise to a
cause of action against a lawyer nor should it create any presumption in
such a case that a legal duty has been breached.”).
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. See, e.g., Ruden, 543 N.W.2d at 610. Stender
did not introduce evidence of any breach of duty owed to her in her legal
malpractice claim separate and distinct from the existence of an
attorney–client sexual relationship. Likewise, Stender did not introduce
evidence of any injury, loss, or damage separate from the underlying
sexual relationship. As such, the violation of rule 32:1.8(j) cannot be
used, on its own, to establish a per se case of legal malpractice.
B. Drafting of the Will. Stender argues that Blessum committed
legal malpractice by his actions in drafting her will. The district court
granted a directed verdict on this claim for legal malpractice, finding
Stender did not allege any defect in the will itself. However, Stender
argues the basis for this claim of legal malpractice is not that the will is
defective. Rather, she asserts the bases of her claim for legal malpractice
in drafting the will are multifaceted and include the following:
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(1) Blessum falsely and knowingly represented to Stender that a will was
necessary to ensure that her children would receive her estate in the
event of her death; (2) Blessum made such a false representation for the
sole purpose of pursuing a sexual relationship with her; (3) Blessum
used his power and influence, and the knowledge of Stender’s
vulnerability and fear of her ex-husband, to induce her into believing
that her life had been threatened and that she needed a will as soon as
possible to safeguard her children’s inheritance; and (4) Blessum drafted
the will while engaged in a sexual relationship with her. Stender claims
the directed verdict was in error and this malpractice claim should have
been submitted to the jury.
To establish a claim for legal malpractice, a plaintiff must produce
substantial evidence demonstrating (1) an attorney–client relationship
existed giving rise to a duty; (2) the attorney violated or breached the
duty, either by an overt act or a failure to act; (3) the breach of duty
proximately caused injury to the client; and (4) the client did sustain an
actual injury, loss, or damage. Sabin v. Ackerman, 846 N.W.2d 835, 839
(Iowa 2014); Trobaugh, 668 N.W.2d at 580. Legal malpractice exists
when the attorney fails “to use such skill, prudence and diligence as
lawyers of ordinary skill and capacity commonly possess and exercise in
the performance of tasks which they undertake.” Millwright v. Romer,
322 N.W.2d 30, 32 (Iowa 1982) (quoting Neel v. Magana, Olney, Levy,
Cathcart & Gelfand, 491 P.2d 421, 422–23 (Cal. 1971)); see also Ruden,
543 N.W.2d at 610–11.
In a claim for legal malpractice, “unless the plaintiff’s claim is
based on standards of care and professionalism understood and
expected by laypersons, the plaintiff will have to retain an expert to go
19
forward.” 8 Barker v. Capotosto, 875 N.W.2d 157, 167 (Iowa 2016).
Generally, we require expert testimony on the standard of care in legal
malpractice actions. Crookham, 584 N.W.2d at 266. This is because the
measure for the standard of care required is that of a similarly situated
ordinary lawyer. 16 Gregory C. Sisk & Mark S. Cady, Iowa Practice
Series:TM Lawyer & Judicial Ethics § 13:4(b), at 1106–07 (2015).
The question of whether the drafting of a will fell outside the
ordinary skill, prudence, or diligence expected of a similarly situated,
ordinary attorney is a technical legal question that requires the use of an
expert witness. The technicalities of drafting a will and the question of
negligence and causation are not in the realm of topics normally
understood or expected of laypersons. Stender did not introduce any
expert witness testimony on the issue of whether Blessum committed
legal malpractice in the drafting of her will.
Likewise, Stender does not argue that the will prepared by
Blessum was defective. The lawyer’s duty in a legal malpractice case is
“to use ‘such skill, prudence and diligence as lawyers of ordinary skill
and capacity commonly possess and exercise’ in performing the task
which he undertakes.” Ruden, 543 N.W.2d at 610–11 (quoting
Millwright, 322 N.W.2d at 32). A claim for legal malpractice is
necessarily grounded in the allegation that the legal services provided by
8When we have excused a plaintiff from the requirement to provide expert
testimony, the attorney’s behavior has been overt and obvious to a layperson. 16
Gregory C. Sisk & Mark S. Cady, Iowa Practice Series:TM Lawyer & Judicial Ethics
§ 13:4(b), at 1106–07 (2015). Some examples of obvious attorney errors are the failure
to investigate the legal description of a parcel of land prior to paying excessive death
taxes, lying to a client to cover up a conflict of interest, and the failure to communicate
an offer of a settlement to a client. Wilson v. Vanden Berg, 687 N.W.2d 575, 583 (Iowa
2004); Schmitz v. Crotty, 528 N.W.2d 112, 116 (Iowa 1995); Whiteaker v. State, 382
N.W.2d 112, 115–16 (Iowa 1986).
20
an attorney were negligently performed. In order to establish a prima
facie claim of legal malpractice, Stender was required to produce
evidence showing what the duty was and how the attorney breached this
duty. Then, even if Stender did produce evidence that such a duty was
breached, the attorney’s breach must have caused “actual injury, loss, or
damage.” Vissoughi, 859 N.W.2d at 649 (quoting Ruden, 543 N.W.2d at
610). An attorney’s act or omission that breached the duty must cause
injury to Stender’s interest by way of loss or damage. Id. Stender failed
to introduce any evidence, separate from the sexual relationship, of a
breach of any duty owed to her. Finally, there was no evidence of any
actual injury, loss, or damage claimed by Stender separate from the
damages resulting from the assault. We affirm the decision of the
district court granting the motion for directed verdict as to this claim of
legal malpractice.
C. Breach-of-Fiduciary-Duty Claim. In the district court,
Stender sought to instruct the jury on a claim for breach of fiduciary
duty as a separate and independent cause of action. 9 After the close of
Stender’s case-in-chief, the district court granted Blessum’s motion for
directed verdict. The district court found the claim was not supported by
any evidence in the record.
The issue on appeal in this case is one of first impression for us:
whether the sexual relationship between Stender and Blessum, by itself,
gives rise to an independent cause of action for breach of fiduciary duty.
Stender argues that it does, as she and Blessum were in a sexual
9Stender’s position on her claim for breach of fiduciary duty is illustrated by her
proposed final jury instruction No. 21. In this instruction, Stender claimed Blessum
breached a fiduciary duty to her by beginning a sexual relationship and then assaulting
her.
21
relationship while they were also in a fiduciary, attorney–client
relationship. At the outset, we recognize that the creation of an
attorney–client relationship does impose on attorneys certain fiduciary
duties. See Kurth v. Van Horn, 380 N.W.2d 693, 696 (Iowa 1986) (“Some
relationships necessarily give rise to a fiduciary relationship . . . [and]
would include those between an attorney and client . . . .”). The creation
of an attorney–client relationship does not, however, impose upon the
attorney fiduciary duties that extend on indefinitely or into aspects of an
attorney’s personal life outside the scope of the attorney–client
relationship. Wagner v. Wagner, 45 N.W.2d 508, 509 (Iowa 1951) (“[A]
person in a fiduciary relationship to another is under a duty to act for
the benefit of the other as to matters within the scope of the relationship
. . . .”).
A number of other courts have directly considered this issue.
These courts have concluded that a sexual relationship between an
attorney and a client, when it had no impact on the legal services
provided, does not give rise to a claim for breach of fiduciary duty. The
leading case on the issue is Kling v. Landry, 686 N.E.2d 33 (Ill. App. Ct.
1997). The attorney, Landry, represented a client, Kling, in two separate
legal matters. Id. at 35. Kling claimed that Landry coerced her into a
sexual relationship during the course of the representation. Id. Kling
alleged that, while Landry was representing her in a dissolution of
marriage action, he came to her home to prepare for trial. Id. at 36.
While at her home, Landry threw her on the bed and began to initiate
sexual intercourse. Id. Kling alleges she submitted to the sexual
intercourse because she was afraid Landry would not continue to
represent her if she refused. Id. After the final judgment for dissolution
of marriage was entered, Landry represented Kling again in a
22
modification of the decree. Id. Again, Landry visited Kling’s home to
prepare for trial and initiated sexual intercourse. Id. Thereafter, Kling
terminated Landry’s representation and alleged that the petition for
modification was frivolous. Id.
Kling filed a four-count petition. Id. Pertinently, Kling claimed
Landry breached his fiduciary duty to her by improperly using his
position as her attorney to coerce her into sexual intercourse. Id.
Landry filed a motion to dismiss the claim for breach of fiduciary duty,
which the district court granted. Id. at 36–37.
The court began its analysis by noting that the attorney–client
fiduciary relationship exists as a matter of law. Id. at 39. It reviewed a
number of Illinois cases regarding the breach of fiduciary duty and
concluded,
We agree that an attorney breaches his fiduciary duty
to his client by exploiting his position as an attorney to gain
sexual favors. We believe that such a breach arises where
the attorney: (1) makes his legal representation contingent
upon sexual involvement; (2) compromises the client’s legal
interests as a result of the sexual involvement; or (3) uses
information, obtained in the course of representing a client
which suggests that the client might be unusually
vulnerable . . . .
Id. at 39–40. However, the court also noted that “sexual intercourse
between two consenting adults is not, of itself, actionable conduct.” Id.
at 40.
Overwhelmingly, courts have followed the Kling approach and held
a sexual relationship alone cannot be the basis for a breach of fiduciary
duty or legal malpractice claim, absent some link between the sexual
relationship and a wrong committed in the scope of the legal
representation. See, e.g., Cecala v. Newman, 532 F. Supp. 2d 1118,
1135 (D. Ariz. 2007) (holding that a plaintiff client who enters into a
23
consensual sexual relationship with an attorney without any
independently inappropriate conduct on the part of the lawyer, cannot
recover in an action unless the plaintiff’s legal position was negatively
affected by the relationship); Tante v. Herring, 453 S.E.2d 686, 695 (Ga.
1994) (finding there was no evidence that the sexual relationship
between the lawyer and client had any effect on the lawyer’s performance
of legal services and thus a claim for legal malpractice did not stand);
Guiles v. Simser, 826 N.Y.S.2d 484, 485–86 (App. Div. 2006)
(“Defendant’s sexual encounters with plaintiff clearly constituted ethical
violations, but ‘[t]he violations of a disciplinary rule does not, without
more, generate a cause of action.’ ” (alteration in original) (quoting
Schwartz v. Olshan Grundman Frome & Rosenzweig, 753 N.Y.S.2d 482
(2003))); Vallinoto, 688 A.2d at 834–35 (finding that although there was
an attorney–client sexual relationship, that alone was insufficient to
demonstrate that the attorney’s legal services departed from the ordinary
standard of care); Bevan v. Fix, 42 P.3d 1013, 1032 (Wyo. 2002) (“Simply
asserting that [the attorney’s] conduct was improper or even immoral is
insufficient to support a claim for malpractice.”).
A New York court upheld a trial court’s order dismissing a
plaintiff’s claim of breach of fiduciary duty based solely on a sexual
relationship. Guiles, 826 N.Y.S.2d at 486. In that case, the plaintiff had
retained an attorney for assistance in a dissolution of marriage case, and
the attorney pursued her romantically. Id. at 485. The attorney was
later terminated from his job and referred to the state’s committee on
professional standards because of the sexual relationship. Id. In her
pleadings, the plaintiff did not allege that the attorney was negligent in
his legal services, but rather that the relationship alone served as a basis
for her breach-of-fiduciary-duty claim. Id. The court found that while
24
the sexual relationship was a violation of a disciplinary rule, the violation
“does not, without more, generate a cause of action.” Id. at 486 (quoting
Schwartz, 753 N.Y.S.2d at 487). Further, the sexual relationship alone
was not enough to demonstrate success on the three elements required
for a legal malpractice claim—that there was negligence in the attorney’s
legal representation, that said negligence was the proximate cause of the
plaintiff’s loss, and that the plaintiff suffered actual and ascertainable
damages. Id.
Similarly, an Illinois appellate court found that the existence of a
sexual relationship, without the client alleging a breach that is clearly
linked to a deficit in the attorney’s actual legal representation, is
insufficient to sustain a claim for breach of a fiduciary duty. Suppressed
v. Suppressed, 565 N.E.2d 101, 105 (Ill. App. Ct. 1990). In that case, a
former client did not allege that an actual conflict of interest existed or
that she was harmed in the legal action by the sexual relationship. Id.
The court found that either “tangible evidence that the attorney actually
made his professional services contingent upon the sexual involvement
or that his legal representation of the client was, in fact, adversely
affected” was required to sustain a claim for breach of a fiduciary duty.
Id.
The above approach is supported by the Restatement (Third) of the
Law Governing Lawyers, which requires a causal nexus between the
alleged breach and the scope of a lawyer’s professional representation.
See Restatement (Third) of the Law Governing Lawyers § 49, at 348 (Am.
Law Inst. 2000). The general duties a lawyer owes to a client that are
within the scope of representation are to
(1) proceed in a manner reasonably calculated to
advance a client’s lawful objectives, as defined by the client
after consultation;
25
(2) act with reasonable competence and diligence;
(3) comply with obligations concerning the client’s
confidences and property, avoid impermissible conflicting
interests, deal honestly with the client, and not employ
advantages arising from the client-lawyer relationship in a
manner adverse to the client; and
(4) fulfill valid contractual obligations to the client.
Id. § 16, at 146. The approach of the Restatement is that “a lawyer is
civilly liable to a client if the lawyer breaches a fiduciary duty to the
client set forth in § 16(3) and if that failure is a legal cause of injury.” Id.
§ 49, at 348 (emphasis added). The Restatement limits the fiduciary
duties a lawyer owes a client to those
duties specified in § 16(3): safeguarding the client’s
confidences . . . and property . . . ; avoiding impermissible
conflicting interests . . . ; dealing honestly with the client . . . ;
adequately informing the client . . . ; following instructions of
the client . . . ; and not employing adversely to the client
powers arising from the client-lawyer relationship.
Id. § 49 cmt. b, at 348.
Likewise, the Mallen treatise recognizes that there must be a
causal relationship between the sexual relationship and the breach of a
fiduciary relationship. 2 Ronald E. Mallen, Legal Malpractice § 16:7,
Westlaw (database updated Jan. 2017). While a client can bring a claim
for breach of fiduciary duty because of a sexual relationship, the client
must demonstrate that the relationship adversely affected the legal
representation and caused the lawyer to breach a fiduciary obligation,
such as that of loyalty or confidentiality. Id.
Claims of negligence require a causal nexus regarding the
alleged sexual contact, the standard of care the attorney
owes the client, and proof of injury arising from the
attorney’s actions and failures. Claims of fiduciary breach
also require a similar analysis, and require that the breach
of a fiduciary obligation of loyalty or confidentiality must
relate to the alleged sexual contact by the attorney.
26
Id. (emphasis added). Because of the requirement of a causal nexus,
“[l]egal malpractice claims have predominantly been precluded as a
cause of action for conduct surrounding sexual relationships, unless the
relationship adversely affected the legal representation.” Id.
Stender did not present sufficient evidence on any nexus between
the sexual relationship and a breach of Blessum’s fiduciary duties to her.
Stender did not allege any deficiencies in the legal representation itself,
nor did she link the sexual relationship to a deficiency in legal
representation. Standing alone, the sexual relationship here was
insufficient to sustain a claim for breach of fiduciary duty. We agree
with the district court decision granting a directed verdict to Blessum on
the claim of breach of fiduciary duty.
Finally, it is important to note that the district court did, in fact,
recognize and instruct the jury on two alleged claims of legal malpractice
presented by Stender where sufficient evidence was presented. While the
claims were ultimately rejected by the jury, it demonstrates that the
district court differentiated between the asserted claims of legal
malpractice and breach of fiduciary duty when Stender argued that the
sole basis of the claim was the sexual relationship. We find no error in
the district court rulings granting the motions for directed verdict.
IV. Evidentiary Rulings.
Stender also appeals numerous rulings by the district court with
respect to the scope of testimony and the admission of other testimony
and evidence. We address each of these claims in turn.
A. Scope of Expert Testimony. Stender introduced the expert
testimony of Matthew Brandes, a Cedar Rapids attorney who has
practiced in family law for thirty-one years. Brandes offered expert
testimony as to the general standard of care required of an attorney in
27
representing clients in dissolution of marriage actions and whether
Blessum violated that standard of care. Brandes was also allowed to
offer his expert opinion on the measure of damages sustained by Stender
due to the mishandling of her divorce proceedings. However, the district
court did not permit Brandes to testify about whether a sexual
relationship between an attorney and client violates the Iowa Rules of
Professional Conduct, whether a breach of fiduciary duty exists based on
a sexual relationship between an attorney and a client, or whether a
client can ever consent to a sexual relationship with an attorney.
Our test on the admissibility of expert testimony is liberal. Ranes
v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). The party
seeking to introduce expert testimony carries the burden of
demonstrating that the proposed expert is qualified and will present
reliable opinion testimony. Quad City Bank & Trust v. Jim Kircher &
Assocs., P.C., 804 N.W.2d 83, 92 (Iowa 2011). We require two areas of
inquiry to be met before expert testimony is admitted. Ranes, 778
N.W.2d at 685. First, the expert testimony must “assist the trier of fact”
in either understanding the evidence or determining a fact at issue in the
case. Id. (quoting Iowa R. Evid. 5.702). This preliminary question
requires that the district court consider whether the proposed evidence is
relevant. Id. Second, the expert witness must be properly qualified “by
knowledge, skill, experience, training, or education.” Id. (quoting Iowa R.
Evid. 5.702).
Based on the analysis set forth above regarding the claims for legal
malpractice and breach of fiduciary duty based solely on the sexual
relationship, we affirm the district court’s decision not to allow Brandes’s
expanded testimony. Brandes was allowed to testify as to the standard
of care, the breach of the standard of care, and offer expert testimony as
28
to the claimed damages in Blessum’s representation of Stender during
her divorce and Blessum’s representation of Stender in her potential
claim for assault or battery against Phillip. Any expert testimony about
the Iowa Rules of Professional Conduct prohibiting sexual relationships
between attorneys and clients, and whether a client could consent to a
sexual relationship, were not relevant to determine the remaining legal
malpractice claims. Expert testimony on those issues would not assist
the jury in determining a fact at issue in the case. We find that the
district court did not abuse its discretion by not permitting the expanded
expert testimony of Brandes as it was irrelevant to any issue the jury was
properly instructed to consider.
B. Disciplinary Proceeding Evidence. The Iowa Supreme Court
Attorney Disciplinary Board filed a complaint against Blessum, and
subsequently, this court found violations of the Iowa Rules of
Professional Conduct. The district court found evidence of the violations
was not relevant. The district court likewise excluded documents from
the disciplinary case, including the findings and conclusions of the
grievance commission and our ethics opinion. On appeal, Stender
argues these documents should have been admitted.
However, the district court did allow statements made by Blessum
during the course of the disciplinary proceedings if they were introduced
by Stender and were relevant to her claims. To the extent Stender
needed to reveal the statements were made in the course of the
disciplinary proceedings in order to introduce these relevant statements,
such statements were allowed.
Evidence that is irrelevant to the issues in a case is not admissible.
See Iowa R. Evid. 5.402; see also State v. Putman, 848 N.W.2d 1, 9 (Iowa
2014). Even evidence that is relevant should be excluded “if its probative
29
value is substantially outweighed by a danger of . . . unfair prejudice,
confus[ion of] the issues, [or] misleading the jury.” Iowa R. Evid. 5.403.
When making the determination of whether to admit evidence, the
district court must engage in a two-step inquiry, asking (1) whether the
proposed evidence is relevant, and (2) if so, whether its probative value
substantially outweighs the dangers of prejudice or confusion. State v.
Webster, 865 N.W.2d 223, 242 (Iowa 2015).
We agree with the decision of the district court that the evidence
that Blessum was charged with and found guilty of ethical violations, in
addition to the underlying documents and our ethics opinion, was not
relevant to the claims Stender presented to the jury. See Iowa R. Evid.
5.402. Stender was allowed to present two legal malpractice claims to
the jury: that Blessum committed legal malpractice in his representation
of her in the divorce, and that Blessum committed legal malpractice in
his representation of her in a potential civil action against Phillip. It is
important to contrast these claims with the issues involved in the
disciplinary case.
The disciplinary case dealt with the delay in filing the QDRO, the
attorney–client sexual relationship, trust account issues, and Blessum’s
underlying criminal conviction for assault as adversely reflecting on his
fitness to practice law. Blessum, 861 N.W.2d at 585–90. These alleged
ethical rule violations 10 are not relevant to the two malpractice claims
submitted to the jury. The jury instruction for the legal malpractice
claim based on the divorce required Stender to prove the following:
10We found Blessum violated rules 32:1.8(j), 32:8.4(b), and 32:1.15(c). Blessum,
861 N.W.2d at 586–91. We found no rule violation for the delay in filing the QDRO. Id.
at 586.
 30
1. That she would not have agreed to the asset
distribution to which she did agree had the Defendant not
been negligent; and
2. Either:
a. Phillip Stender would have agreed to the Plaintiff
receiving a greater asset in the parties’ divorce; or
b. if Phillip Stender would not have agreed to the
Plaintiff receiving a greater asset award, the Plaintiff would
have gone to trial and received a greater asset award as a
result of the trial.
Our ethics opinion did not discuss the asset distribution of the divorce.
With respect to the dissolution action, we only considered whether the
length of time it took Blessum to file the QDRO violated rule 32:1.3. Id.
at 586. We concluded that Blessum did not violate this rule. Id.
The jury instruction for the second malpractice claim based on
Stender’s potential case for assault and battery against Phillip required
her to prove:
1. That she would have taken steps to file a lawsuit
against Phillip Stender for assault and battery if the
Defendant had not been negligent; and
2. She would have recovered damages in a lawsuit
against Phillip Stender for assault and battery.
Again, our ethics opinion did not address Stender’s potential claim
against Phillip for the physical and sexual assault. See id. at 585–91.
The record also discloses that the evidence Stender now complains
was erroneously excluded by the district court was never offered into
evidence. We affirm the decision of the district court and find the district
court did not abuse its discretion by excluding the evidence that we
found Blessum committed ethical violations, the grievance commission’s
documents, and our ethics opinion.
C. Collateral Estoppel/Issue Preclusion. At trial, Stender
requested that the district court take judicial notice of the disciplinary
31
case against Blessum. She additionally requested that Blessum be
precluded from relitigating a number of issues. On appeal, Stender
argues that the district court should have precluded Blessum from
relitigating issues that were decided by this court during the course of
the disciplinary proceedings.
The district court precluded Blessum from relitigating (1) the
factual basis he gave for his guilty plea in the criminal case, (2) that he
had a sexual relationship with Stender during the time he drafted her
will, and (3) that an attorney–client relationship existed at the time he
began a sexual relationship with Stender. The district court did not
preclude Blessum from litigating the following:
1. [Blessum] made a conscious decision to act on his
hostility toward [Stender] to assault her.
2. [Blessum] forcibly prevented [Stender] from leaving
his home while dragging her and striking her repeatedly.
3. [Blessum] falsely attempted to take credit for
summoning the police once he realized [Stender] had
successfully dialed 911.
4. [Stender] had to go to the hospital because of the
physical injury [Blessum] inflicted on her during his assault.
5. [Stender] continued to suffer mental and emotional
injuries from the assault after it ended.
6. [Stender] was [Blessum’s] client. If she had never
retained him as her lawyer, [Stender] would not have been
assaulted by him.
7. [Blessum] attempted to dissuade [Stender] from
pressing charges against him after he assaulted her and he
even instructed her on how to call the courthouse and have
the charges dropped.
....
9. Because of the unequal nature of the relationship,
[Stender] could not consent to the sexual relationship.
32
10. The sexual relationship involved unfair
exploitation of the fiduciary role of the attorney and used the
trust of [Stender] to her disadvantage.
The district court did not preclude numbers one through seven because
they were not necessary and essential to the judgment in the ethics case.
It did not preclude numbers six, nine and ten because they were not
included in the fact findings made by this court in the ethics opinion.
In Blessum’s disciplinary case, there were three ethical violations
found: (1) sexual relations with a client under rule 32:1.8(j), (2) criminal
act adversely reflecting on a lawyer’s fitness to practice law under rule
32:8.4(b), and (3) a trust account violation under rule 32:1.15(c).
Blessum, 861 N.W.2d at 585–91. We did not find a violation under rule
32:1.3, the rule requiring reasonable diligence and promptness, for
Blessum’s eighteen months delay in filing the QDRO. Id. at 585–86.
Collateral estoppel, or issue preclusion, prevents parties in a prior
action from relitigating issues raised and resolved in a previous action.
Comes v. Microsoft Corp., 709 N.W.2d 114, 117–18 (Iowa 2006). The
doctrine can be used in an offensive or defensive manner. Id. at 118. An
offensive use of the doctrine is when
a stranger to the judgment, ordinarily the plaintiff in the
second action, relies upon a former judgment as conclusively
establishing in his favor an issue which he must prove as an
essential element of his cause of action or claim.
Id. (quoting Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa
1981)).
This case involves the offensive use of issue preclusion. Issue
preclusion may be invoked if four prerequisites are met:
(1) the issue concluded must be identical; (2) the issue must
have been raised and litigated in the prior action; (3) the
issue must have been material and relevant to the
disposition of the prior action; and (4) the determination
33
made of the issue in the prior action must have been
necessary and essential to the resulting judgment.
Id. (quoting Hunter, 300 N.W.2d at 123). Offensive use of issue
preclusion requires two additional considerations:
(1) whether the opposing party in the earlier action was
afforded a full and fair opportunity to litigate the issues . . . ,
and (2) whether any other circumstances are present that
would justify granting the party resisting issue preclusion
occasion to relitigate the issues.
Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 451 (Iowa 2016) (quoting
Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 22 (Iowa 2012)).
“Although offensive use of issue preclusion is allowed in Iowa[,] . . . it is
more restrictively and cautiously applied than defensive issue
preclusion.” Id. (alteration in original) (quoting Gardner v. Hartford Ins.
Accident & Indemn. Co., 659 N.W.2d 198, 203 (Iowa 2003)). “The
ultimate final judgment need not be on the specific issue to be given
preclusive effect.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Stowers,
823 N.W.2d 1, 8 (Iowa 2012). However, it must be “firm and considered”
or “resolved.” Id.; see also Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Rhinehart, 827 N.W.2d 169, 179 (Iowa 2013).
The Restatement (Second) of the Law on Judgments lays out a
balancing test for determining which issues are precluded by a former
judgment:
When there is a lack of total identity between the particular
matter presented in the second action and that presented in
the first, there are several factors that should be considered
in deciding whether for purposes of the rule of this Section
the “issue” in the two proceedings is the same, for example:
Is there a substantial overlap between the evidence or
argument to be advanced in the second proceeding and that
advanced in the first? Does the new evidence or argument
involve application of the same rule of law as that involved in
the prior proceeding? Could pretrial preparation and
discovery relating to the matter presented in the first action
reasonably be expected to have embraced the matter sought
34
to be presented in the second? How closely related are the
claims involved in the two proceedings?
Restatement (Second) of the Law on Judgments § 27 cmt. c, at 252 (Am.
Law Inst. (1982)).
The first factor that must be met is that the issues are identical.
Comes, 709 N.W.2d at 118. In Blessum’s disciplinary case, we found
that he violated three rules: a sexual relationship with a client in
violation of rule 32:1.8(j), a criminal act that adversely reflected his
fitness to practice law in violation of rule 32:8.4(b), and mishandling a
trust account in violation of rule 32:1.15(c). Blessum, 861 N.W.2d at
588–91. In this action, the claims Stender submitted to the jury were
two legal malpractice claims for Blessum’s representation of her in her
divorce and her potential claim against her ex-husband, assault and
battery by Blessum, and punitive damages. The only similar claims are
the commission of a criminal act adversely reflecting on Blessum’s
fitness to practice law and the claim for assault and battery. Here, the
district court precluded Blessum from relitigating the facts necessary to
establish that he committed a criminal act. 11 However, the remaining
nine issues Stender sought to preclude are not elements of the crime of
assault causing bodily injury, the underlying crime Blessum pled guilty
to and which adversely reflected on his fitness to practice law. 12
Similarly, the remaining nine issues were neither “material and
relevant to the disposition” nor “necessary and essential to the resulting
judgment.” Comes, 709 N.W.2d at 118. In Blessum’s disciplinary case,
11The district court precluded Blessum from relitigating (1) that he struck
Stender on June 11, 2012; (2) that the strike was intentional; (3) that the resulting
contact was insulting and offensive; (4) that the strike caused Stender to suffer a bodily
injury; and (5) that he did not act in self-defense.
12Blessum pled guilty to assault causing injury in violation of Iowa Code sections
708.1(1) and 708.2(2).
35
the facts necessary to establish a violation of rule 32:1.8(j) were that a
sexual relationship existed and that it existed during Blessum’s
representation of Stender. Blessum, 861 N.W.2d at 587–88. To find a
violation of rule 32:8.4(b), the facts necessary were that Blessum
committed a criminal act and that said criminal act reflected adversely
on his honesty, trustworthiness, or fitness as a lawyer. Id. at 588. The
nine issues Stender sought to preclude Blessum from relitigating were
secondary to the facts necessary to establish the rule violations in his
disciplinary case.
We agree with the decision of the district court that those nine
issues were not precluded. We find no abuse of discretion.
D. Medical Records. The district court allowed the introduction
of Stender’s medical records to the extent they were relevant, without
requiring expert testimony. Before trial, Stender filed a motion in limine
requesting that the court only allow her medical records to be explained
by expert testimony, but not sent to the jury during deliberations.
During trial, hundreds of pages of medical records were introduced,
including general practice healthcare records, mental health and
counseling records, chiropractor visit records, vision records, and
physiotherapy records. The court allowed the documents to be admitted
to the jury during deliberations, but redacted those portions of the
medical records that were not relevant or otherwise inadmissible.
Stender argues the redactions were not sufficient because they allowed
the jury to guess at the terms used and read unsupported conclusions
about her condition.
The Iowa Code provides a patient-litigant exception to the statutory
patient–physician privilege. Iowa Code § 622.10(2). It states,
36
The prohibition does not apply to . . . mental health
professionals . . . in a civil action in which the condition of
the person in whose favor the prohibition is made is an
element or factor of the claim or defense of the person or of
any party claiming through or under the person. The
evidence is admissible upon trial of the action only as it
relates to the condition alleged.
Id. If this exception applies, the information to which it applies is no
longer protected as privileged. Id.; see also Fagen v. Grand View Univ.,
861 N.W.2d 825, 836 (Iowa 2015). The purpose of this exception does
not frustrate the underlying purpose for patient–physician privilege.
Fagen, 861 N.W.2d at 832. This is because the patient still knows that
his or her statements to mental health providers “remain confidential
unless he [or she] affirmatively and voluntarily chooses to reveal them”
by raising the medical condition as a claim or defense. Id. (quoting
Chung v. Legacy Corp., 548 N.W.2d 147, 151 (Iowa 1996)).
However, the statute does not waive the patient’s privilege to all of
their mental health records. Id. There are two competing interests the
court must weigh when considering whether to admit medical records:
the patient’s right to privacy in his or her own mental health records,
and the defendant’s right to present a full and fair defense to the
plaintiff’s claims. Id. Because of this balancing, one of the
circumstances in which a patient may waive the right to privacy of
mental health records is when the patient makes the “condition . . . an
element or factor of the claim or defense.” Id. at 833 (quoting Iowa Code
§ 622.10(2)).
Stender’s claims voluntarily raised her medical condition in the
litigation. For example, in her original petition, Stender raised a claim
for intentional infliction of emotional distress. Although she later
dismissed this claim, the jury was instructed on the following elements of
damage on her claims: past medical expenses, past physical and mental
37
pain and suffering, past loss of use of the full mind and body, future
medical expenses, future physical and mental pain and suffering, and
future loss of use of the full mind and body. Each of the elements of
damage is based on issues involving Stender’s medical conditions, both
mental and physical. The jury was also instructed on her claim for
punitive damages in connection with the assault and battery. Clearly,
the entire spectrum of Stender’s medical conditions was relevant to the
jury in its consideration of the award of damages and punitive damages
in this case.
We agree with the decision of the district court that Stender’s
medical records were related to her claims and were properly submitted
to the jury for its consideration. The district court redacted portions of
the records that were not relevant or admissible before admitting them to
the jury during deliberations. While Stender claims the records were not
redacted enough and some of them should not have been given to the
jury at all, the district court properly weighed Stender’s right to privacy
in her medical records with Blessum’s right to present a full and fair
defense to her claims involving her medical conditions. We find no abuse
of discretion by the district court.
E. Jan Blessum’s Testimony. Stender argues that the testimony
of Jan Blessum, Blessum’s estranged wife, should have been excluded
because it was highly prejudicial and this prejudice substantially
outweighed any probative value.
Stender testified that Blessum and his wife separated in August or
September 2011. She also testified that during the course of their
relationship, Blessum and his wife attempted to reconcile, but Blessum
told her the attempts failed. Stender testified that she would “let Zane
and Jan try to work it out” and that she “never wanted to discourage
38
them from being together” because she “thought it would be good if they
would get back together.” It was only after Stender testified to these
matters that Blessum requested Jan Blessum testify to contradict this
testimony.
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
39
restraining order against Stender because of the emails and text
messages, but was unsuccessful.
Stender argues that Jan’s testimony was unduly prejudicial
because it painted Stender in a negative light to the jury. The district
court allowed the testimony because Jan was able to directly address
Stender’s testimony and because it was relevant to Stender’s claims for
punitive damages.
“The court may exclude evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .” Iowa
R. Evid. 5.403. Evidence is relevant if “it has any tendency to make a
fact more or less probable than it would be without the evidence.” Iowa
R. Evid. 5.401; see also Mercer v. Pittway Corp., 616 N.W.2d 602, 612
(Iowa 2000). “Unfair prejudice arises when the evidence prompts the
jury to make a decision on an improper basis.” Mercer, 616 N.W.2d at
612 (quoting Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa
1997)). However, not all erroneously admitted evidence requires reversal.
Id. “Although a presumption of prejudice arises when the district court
has received irrelevant evidence over a proper objection, the presumption
is not sufficient to require reversal if the record shows a lack of
prejudice.” Id. (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 235
(Iowa 2000)).
Jan’s testimony was relevant because it directly addressed
Stender’s own contentions about the nature of her relationship with
Blessum. It was also relevant to the jury in its determination of damages
and punitive damages. While Jan’s testimony certainly painted Stender
in a negative light, the record demonstrates a lack of prejudice. The jury
returned a substantial verdict that included $100,000 in punitive
40
damages. There was no abuse of discretion by the district court in
allowing the testimony of Jan Blessum to rebut the testimony of Stender.
V. Cross-Appeal on Damages.
Blessum filed a cross-appeal arguing for a new trial on the issue of
damages relating to the claim for assault and battery and the claim for
punitive damages. He claims he was unable to make a motion for a new
trial or a motion for judgment notwithstanding the verdict at the district
court level because Stender filed her notice of appeal before he had an
opportunity to do so.
A notice for appeal from a final order or judgment must be filed
within thirty days after the final order or judgment. Iowa R. App. P.
6.101(b). A motion for a new trial or a motion for judgment
notwithstanding the verdict must be filed within fifteen days after the
verdict. Iowa R. Civ. P. 1.1007. We can remand a pending appeal to the
district court, but the litigant is required to file a motion for remand—in
this case to file a motion for a new trial—“as soon as the grounds for the
motion become apparent.” Iowa R. App. P. 6.1004.
Here, Stender filed her notice of appeal on November 25, 2015.
Blessum did not file a motion for remand until June 30, 2016, more
than seven months after he was aware of the notice of appeal. Blessum
then filed his brief, which contained his argument on cross-appeal for a
new trial. We find that Blessum’s motion and cross-appeal were both
untimely.
In any event, we reject on the merits Blessum’s challenge to the
amount of the jury award. “[T]he amount of an award is primarily a jury
question, and courts should not interfere with an award when it is
within a reasonable range of the evidence.” Smith v. Iowa State Univ.,
851 N.W.2d 1, 31 (Iowa 2014) (alteration in original) (quoting Jasper v.
41
H. Nizam, Inc., 764 N.W.2d 751, 772 (Iowa 2009)). The jury’s
assessment of damages “should be disturbed only for the most
compelling reasons.” Rees v. O’Malley, 461 N.W.2d 833, 839 (Iowa
1990) (quoting Olsen v. Drahos, 229 N.W.2d 741, 742 (Iowa 1975)).
“[W]e view the evidence in the light most favorable to the verdict . . . .”
Id. (quoting Olsen, 229 N.W.2d at 742). The award of actual damages
and punitive damages in this case did not exceed the range permitted by
the evidence.
VI. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court as well as each of the evidentiary rulings of the district court. We
conclude that Blessum’s motion for a new trial on the issue of damages,
and the cross-appeal, were untimely. However, even if we consider
Blessum’s challenge to the award of damages and punitive damages on
the merits, we find no error.
AFFIRMED.
All justices concur except Hecht, Wiggins, and Appel, JJ., who
dissent.
42
#15–2016, Stender v. Blessum
HECHT, Justice (dissenting).
Because I believe the district court erred in directing a verdict on
two of Melissa Stender’s theories of liability, I respectfully dissent.
As the majority has correctly observed, we review the evidence in
the light most favorable to a party resisting a motion for directed verdict.
See Dettmann v. Kruckenberg, 613 N.W.2d 238, 250–51 (Iowa 2000). We
review the district court’s ruling to determine whether Stender presented
substantial evidence on each element of her claims. See Gibson v. ITT
Hartford Ins., 621 N.W.2d 388, 391 (Iowa 2001). “Evidence is substantial
if a jury could reasonably infer a fact from the evidence.” Balmer v.
Hawkeye Steel, 604 N.W.2d 639, 641 (Iowa 2000). Applying these
principles, I conclude the district court erred in failing to submit to the
jury Stender’s claim that Anthony Zane Blessum was negligent in his
representation of her in connection with the will. For reasons explained
below, I also conclude Blessum’s fiduciary-duty theory should have been
submitted to the jury.
I. The Negligence Claim.
The majority affirms the directed verdict on Stender’s claim that
Blessum was negligent in engaging in a sexual relationship with her
while representing her in connection with a will on two grounds. First,
my colleagues in the majority conclude Blessum owed no actionable duty
to avoid a sexual relationship with Stender while representing her.
Second, they conclude the negligence claim was properly withheld from
the jury because Stender offered “no evidence of any actual injury, loss,
or damage . . . separate from the damages resulting from the assault.”
A. Duty to Avoid a Sexual Relationship. The subject of sexual
relationships between lawyers and their clients is addressed in rule
43
32:1.8(j) of the Iowa Rules of Professional Conduct for lawyers. In
relevant part, that rule provides,
A lawyer shall not have sexual relations with a client, or a
representative of a client, unless the person is the spouse of
the lawyer or the sexual relationship predates the initiation
of the client-lawyer relationship.
Comment 17 to rule 32:1.8(j) explains the rationale for prohibiting sexual
relationships between lawyers and their clients and provides additional
context:
The relationship between lawyer and client is a fiduciary one
in which the lawyer occupies the highest position of trust
and confidence. The relationship is almost always unequal;
thus a sexual relationship between lawyer and client can
involve unfair exploitation of the lawyer’s fiduciary role, in
violation of the lawyer’s basic ethical obligation not to use
the trust of the client to the client’s disadvantage. In
addition, such a relationship presents a significant danger
that, because of the lawyer’s emotional involvement, the
lawyer will be unable to represent the client without
impairment of the exercise of independent professional
judgment. Moreover, a blurred line between the professional
and personal relationships may make it difficult to predict to
what extent client confidences will be protected by the
attorney-client evidentiary privilege, since client confidences
are protected by privilege only when they are imparted in the
context of the client-lawyer relationship. Because of the
significant danger of harm to client interests and because the
client’s own emotional involvement renders it unlikely that the
client could give adequate informed consent, this rule prohibits
the lawyer from having sexual relations with a client
regardless of whether the relationship is consensual and
regardless of the absence of prejudice to the client.
(Emphases added.) Thus, to protect clients from exploitation, lawyer’s
professional judgment, and confidences and evidentiary privileges
accordant to the fiduciary relationship, the rule prohibits most sexual
relationships between lawyers and clients, regardless of actual prejudice
or consent.
A lawyer’s duty to avoid sexual relationships with clients arises
because such relationships create obvious and inherent risks of financial
44
and emotional injuries to clients. 13 A power imbalance between lawyers
and their clients—often arising from clients’ vulnerable personal and
financial positions—tends to significantly undermine the consensual
aspects of sexual relationships between them. See Iowa Supreme Ct.
Att’y Disciplinary Bd. v. Marzen, 779 N.W.2d 757, 760 (Iowa 2010)
(applying the principle that the professional relationship between a
lawyer and a client makes the client’s “consent” to a sexual relationship
with the attorney impossible in the context of an attorney–client
relationship); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Hill, 540
N.W.2d 43, 44 (Iowa 1995) (identifying the unequal balance of power
between an attorney and a client as the reason for the rule prohibiting
sexual relationships between them). A sexual relationship with a client
jeopardizes the lawyer’s loyalty and independent judgment, which are
essential features of the lawyer–client relationship. Iowa R. Prof’l
Conduct 32:1.7 cmt. 1 (“Loyalty and independent judgment are essential
elements in the lawyer’s relationship to a client.”). 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.
13As the text of the rule suggests, the rule does not establish a categorical
prohibition of sexual relationships between lawyers and clients. When a sexual
relationship predates the lawyer–client relationship or occurs within a marital
relationship, the rule does not forbid the relationship.
45
The majority acknowledges Blessum breached an ethical duty
under rule 32:1.8(j) by engaging in the sexual relationship with Stender
but concludes the breach was of no legal consequence in this case.
Perceiving no connection between the sexual relationship and a breach of
some other professional duty owed by Blessum to Stender (e.g.,
negligence in preparing a defective will), the majority affirms the directed
verdict. Applying the principles that limit our standard of review in this
case, I come to a different conclusion.
I find substantial evidence in the record tending to establish a
sufficient nexus between the sexual relationship and the legal services
provided by Blessum. Stender presented evidence supporting a finding
that Blessum reinitiated the lawyer–client relationship by wrongfully
advising her that she needed a will to assure her property would be
inherited by her children. She also offered expert testimony suggesting
Blessum’s legal advice on this point was inaccurate because her property
would pass to her children even if she died intestate. During trial,
Stender repeatedly pressed her theory of the required nexus between the
lawyer–client relationship and Blessum’s sexual misconduct: Blessum
gave the inaccurate legal advice as a pretext for reestablishing the
lawyer–client relationship in furtherance of an improper personal
relationship. When I view the record, as I must, in the light most
favorable to Stender, I find she presented sufficient evidence to engender
a fact question on her claim of a nexus between Blessum’s conduct in
reestablishing the lawyer–client relationship for the purported purpose of
drawing an unnecessary will and the ensuing improper sexual
relationship. This nexus is analogous to the one supporting a civil action
against an attorney who provides legal services on the condition that the
client engage in sexual activity. See Suppressed v. Suppressed, 565
46
N.E.2d 101, 105 (Ill. App. Ct. 1990) (acknowledging rule that breach of
lawyer’s duty prohibiting sexual relationship is actionable if professional
services are contingent upon the client’s participation in a sexual
relationship).
I would reject the majority’s no-duty rule under the circumstances
of this case for other important reasons. First, rule 32:1.8(j) establishes
a clear standard of conduct for lawyers. The majority correctly notes
that the scope to our rules of professional conduct cautions that the
rules of professional conduct are not designed to be a basis for civil
liability. See Iowa R. Prof’l Conduct ch. 32 Preamble & Scope [20]. Yet,
since the rules “do establish standards of conduct by lawyers, a lawyer’s
violation of a rule may be evidence of breach of the applicable standard of
conduct.” Id. I believe rule 32:1.8(j) establishes a standard of conduct—
a bright-line rule—clearly violated in this case by Blessum. The district
court erred in excluding evidence of this standard and expert testimony
opining that the standard was breached and also erred in directing a
verdict in Blessum’s favor on this theory of negligence.
Second, I would hew closely to the principle that no-duty rules
should be reserved for “exceptional cases, when an articulated
countervailing principle or policy warrants denying or limiting liability in
a particular class of cases.” Restatement (Third) of Torts: Liab. for
Physical & Emotional Harm § 7(b), at 77 (Am. Law Inst. 2010). I can
conceive of no principle or policy justifying a no-duty rule for lawyers
engaging in sexual relationships with their clients, especially in cases
like this where evidence tends to show the lawyer knew of the client’s
particular vulnerabilities.
In my view, policy considerations point decisively in favor of the
recognition of a duty in this case. The risks of client injury attending
47
such relationships are deemed sufficiently grave to justify severe
sanctions under our rules regulating professional conduct. See, e.g.,
Marzen, 779 N.W.2d at 769 (suspending attorney’s license for at least six
months); Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Furlong, 625
N.W.2d 711, 714 (Iowa 2001) (suspending license for at least eighteen
months); Hill, 540 N.W.2d at 45 (suspending license for at least twelve
months). Yet despite disciplinary sanctions imposed by this court
against attorneys engaging in improper conduct of this type, the
prohibited relationships persist, suggesting such sanctions do not
adequately deter the wrongful conduct. A civil damage remedy is
justified—indeed, required, in my view—by a policy favoring protection of
confidential, fiduciary, and privileged lawyer–client relationships and a
policy of deterrence against sexual misconduct that is destructive of such
relationships. The majority’s no-duty rule undermines these important
policies, especially in this case where Stender advanced a plausible
nexus between Blessum’s purpose for reestablishing the lawyer–client
relationship and his improper sexual conduct.
B. Damages Caused by the Sexual Relationship. Although rule
32:1.8(j) establishes a clear standard of conduct for lawyers, a civil action
for its breach requires proof that the sexual relationship caused
damages. I dissent from the majority’s conclusion that the directed
verdict on the negligence claim was justified for lack of substantial
evidence of damages caused by Blessum’s breach of the duty to avoid a
sexual relationship with Stender. The district court acknowledged that
Stender presented substantial evidence of severe physical and emotional
injuries resulting from the assault and battery. Ignoring that comment
17 to rule 32:1.8(j) instructs that “the client’s own emotional involvement
renders it unlikely that the client could give adequate informed consent,”
48
the district court found that Stender consented to other aspects of the
sexual relationship and thus, as a matter of law, suffered no
compensable emotional injury from the sexual relationship beyond that
for which she could be compensated under the assault and battery
theory. 14 But see Marzen, 779 N.W.2d at 760 (concluding a client’s
consent does not excuse a lawyer’s sexual relationship with a client).
The majority affirms on this issue, finding “no evidence of any actual
injury, loss, or damage . . . separate from the damages resulting from the
assault.” I disagree.
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
14In refusing to submit Stender’s negligence theory, the district court observed
that any emotional distress suffered by Stender solely because of the sexual
relationship (and apart from the distress caused by the beating) would not have been
compensable if she and Blessum had not been in a lawyer–client relationship. But, of
course, the prohibited sexual relationship between the parties in this case occurred
within their lawyer–client relationship.
49
Stender failed to engender a jury question on damages arising from
Blessum’s breach of duty.
II. The Fiduciary-Duty Claim.
The majority affirms the directed verdict on Stender’s breach of
duty claim on the ground that “a sexual relationship alone cannot be the
basis for a breach of fiduciary duty or legal malpractice claim, absent
some link between the sexual relationship and a wrong committed in the
scope of the legal representation.” The rationale offered for a no-duty
rule in this context is that “sexual intercourse between two consenting
adults is not, of itself, actionable conduct.” Kling v. Landry, 686 N.E.2d
33, 40 (Ill. App. Ct. 1997). But consent is an odd justification for the
majority’s adoption of the rule because we have previously concluded—
consistent with comment 17 to rule 32:1.8(j)—that a lawyer’s duty to
avoid a sexual relationship with a client is not vitiated by the client’s
consent. Marzen, 779 N.W.2d at 760.
As the majority has noted, a lawyer owes a client a fiduciary duty
precluding the lawyer’s employment of powers arising from the lawyer–
client relationship in a manner adverse to the client’s interest. See
Restatement (Third) of the Law Governing Lawyers § 49 cmt. b, at 348
(Am. Law Inst. 2000). A reasonable juror could credit Stender’s
testimony that Blessum threatened Stender during the beating, as he
attempted to coerce her into having sex, by saying that if she thought the
“other men have hurt [her], . . . just wait and see what [he] do[es] to
[her].” Blessum learned this information during the course of the
lawyer–client relationship. His threat thus constitutes substantial
evidence that Blessum employed—to Stender’s disadvantage—
information about her past that she revealed to him during the course of
50
the confidential lawyer–client relationship, thus breaching his fiduciary
duty.
Viewing the evidence and reasonable inferences in the light most
favorable to Stender, I also conclude reasonable inferences from the
evidence tend to support her theory that Blessum did not deal with her
honestly when he reinitiated the lawyer–client relationship based upon
the false representation that she needed a will to assure her children
would inherit her property. On this basis, too, I conclude substantial
evidence supported a finding that Blessum engaged in dishonesty and
thereby violated his fiduciary duty to Stender.
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.
III. Conclusion.
For the reasons I have expressed, 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.
Wiggins and Appel, JJ., join this dissent.