from the Iowa District Court for Polk County, Douglas F.
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.
L. Brown and Alexander E. Wonio of Hansen, McClintock &
Riley, Des Moines, for appellee.
Richard J. Thomas of Burke & Thomas, PLLP, Arden Hills,
Minnesota, for intervenor-appellee.
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.
Background Facts and Proceedings.
September 2008, Melissa Stender met with attorney Anthony
Zane Blessum for legal assistance in a divorce proceeding
against her then-husband, Phillip Stender. Blessum had previously represented Phillip
in a separate legal matter. In October, Blessum filed a
petition for 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.
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
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
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
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. However, the issue of Stender's
interest in Phillip's retirement account had still not
been addressed by entry of a QDRO.
the meeting, Blessum called Stender and asked if she wanted
to meet and catch up. She agreed, and they met at a local
restaurant. During this meeting, Blessum told Stender he was
unhappy in his marriage. At the end of the evening, Blessum
kissed Stender. After Stender got in her car but before she
left the parking lot, Blessum sent her a text message asking
if they could meet again. Over the next two weeks, Blessum
and Stender continued to meet and talk about intimate topics
such as Stender's childhood trauma and her marital and
sexual abuse. Within two or three weeks, they began a sexual
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.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
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 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.
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 help. The police arrested Blessum at the
scene. The police also called an ambulance, and Stender was
transported to the hospital for medical treatment.
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.
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
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.
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 conduct and intentional infliction of
emotional distress, legal malpractice, and breach of
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.
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.
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.
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 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
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.
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.
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 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.
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.
Standard of Review.
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
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.
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.
Analysis of the Rulings on the Motions for Directed
claims the district court erred in granting the motions for
directed verdict for a number of reasons, which we address in
Per Se Legal Malpractice.
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.
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 (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).
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 2005).
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.
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 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 . 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  (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.
Approach of other states.
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"). 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) (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,  state appellate courts,  and federal courts have held that the violation of an ethical
rule, without more, is insufficient to establish a per se
cause of action for legal malpractice.
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 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  ("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.").
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
Drafting of the Will.
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:
(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.
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
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 forward." 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).
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.
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 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.
district court, Stender sought to instruct the jury on a
claim for breach of fiduciary duty as a separate and
independent cause of action. 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.
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 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 . . .
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 ...