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Brett v. Berkowitz2/27/1998
In this appeal we affirm the judgment for defendant entered upon a defense verdict in an action for sexual misconduct and malpractice by a client against a lawyer. We hold that (1) the underlying claims against the lawyer for offensive touching and sexual harassment cannot be based on criminal statutes, although they could be the basis for a claim of intentional tort; (2) plaintiff was properly denied discovery of allegations of sexual misconduct with other clients of defendant; and (3) the Superior Court properly excluded testimony of a legal malpractice expert who was not familiar with the standard of care required of lawyers in the State of Delaware.
Facts
After her divorce in 1988, Ellen Brett hired Gerald Z. Berkowitz, Esquire to represent her before the Family Court with respect to ancillary matters. Berkowitz represented Brett from August 1989 through March. 1991, whereupon Brett fired Berkowitz and filed a civil suit against him and the firm of Berkowitz, Schagrin, Coonin & Cooper, P.A. Brett alleged sexual misconduct and legal malpractice. She claimed that, over the course of her attorney-client relationship with Berkowitz, he rubbed her thigh, kissed her against her will and repeatedly suggested that they sleep together, all in violation of criminal statures 11 Del. C. sections 601 and 763(2). Brett's legal malpractice claims were based on allegations that Berkowitz failed to advise her of a possible claim against her former husband for damages from physical abuse, and that Berkowitz negligently handled matters concerning property division.
The discovery issue involved two interrogatories, by which Brett requested information relating to other clients, and a related deposition inquiry. The interrogatories were as follows:
3. Provide the names and addresses of all clients who defendant Berkowitz has had any type of sexual contact with or who have made a complaint of any sexual contact regarding defendant Berkowitz.
4. State all occasions on which any shareholders or partners of defendant law firm had any indication that defendant Berkowitz was having any type of sexual contact with any of his clients.
The defendants objected to and refused to answer both interrogatories. In Berkowitz' deposition, he refused to answer a series of questions concerning sexual relations with clients, claiming that they were beyond the scope of discovery. Plaintiff then filed a motion to compel answers to the interrogatories and deposition questions. Citing Superior Court Civil Rule 26(b)(1), plaintiff argued that such discovery had the potential to uncover other admissible evidence. Further, she argued that the evidence itself was admissible under Delaware Rules of Evidence 404(b) and 406.
Disposition in the Superior Court
In determining whether the information sought was relevant to Brett's claims, the court ruled as a threshold matter that Brett did not have a private cause of action under the criminal statutes for offensive touching and sexual harassment. Instead, the court determined that her claim was one of intentional infliction of emotional distress.
The Superior Court found that information concerning Berkowitz' alleged relations with other clients was relevant to the issue of whether he sought sex from Brett. Nevertheless, noting that the disclosure requested by Brett was unique in that it implicated the substantial privacy interests of third parties, the court denied the motion to compel on the ground that the discovery was neither admissible nor reasonably calculated to lead to the discovery of admissible evidence.
At trial, the Superior Court excluded the testimony of pla
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