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July 29, 2002

Ross v. Creel Printing & Publishing Company, Inc, et al. (2002) 100 Cal.App.4th 736

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The First District holds that a violation of the Rules of Professional Conduct cannot form the basis for an intentional infliction of emotional distress claim.

Daniel C. Ross (“Ross”) filed a complaint against defendants Creel Printing & Publishing Company, Inc. (“Creel”), Gary R. Kasufkin, and various Does for intentional infliction of emotional distress.  Ross alleged that attorney defendants sent a letter informing him that certain checks sent to Creel by Ross were returned unpaid, and threatened to inform the Nevada County District Attorney.  Ross alleged that the attorney’s conduct was extreme and outrageous because of the attorneys’ ethical obligation not to threaten criminal prosecution to obtain an advantage in a civil proceeding.

The attorney’s demurrer to the complaint was sustained without leave to amend.  The Court of Appeal affirmed because Ross’ complaint failed to allege outrageous conduct as a matter of law.

The Court disagreed with Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893 that held a violation of a former version of the Rule of Professional Conduct prohibiting attorneys from making threats of criminal prosecution to obtain a civil advantage was outrageous conduct.  A violation of a Rule of Professional Conduct does not render an attorney liable for damages.  Rule 1-100 expressly precludes new civil causes of action based on their violation.  Accordingly, there is no independent cause of action for the breach of a disciplinary rule.

Comment: Ross is welcome protection for attorneys from third party claims.


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