Full opinion text
ORDER NEIL V. WAKE, District Judge. Table of Contents I. Factual Background.1129 NationsBank.1130 < 1. The Underlying Employment Dispute .1130 2. Retaining Lawyer Newman .1130 3. Mitigation of Damages.1130 4. Litigation Strategy.1131 NASD Arbitration.1131 Cecala’s Relationship with Newman.1132 Malpractice Litigation.1132 II. Summary Judgment Standard.1132 III. Legal Malpractice in Arizona.1133 A. Two Theories of Malpractice Liability.1133 B. A Prima Facie Case.1134 1. Cognizable Injury.1134 2. Attorney Negligence Malpractice.1134 3. Fiduciary Breach Malpractice.1134 C. Trial Methodology.1135 D. Causation.. 1136 1136 1. “But-For” Causation. 1137 2. Proximate Causation and Foreseeability of the Injury_ 3. Bub-For Causation and Proximate Causation in Litigation Malpractice . oo co H i — i i. Subversion of the But-For Causation Requirement.. co co H T — i ii. The Judgment Error Rule, Speculativeness, and Lack of Foreseeability. co T — I i — I 4. Fiduciary Breach Malpractice o ^ T — I r-d Tv. Cecalas Second Amended Complaint.1140 V. Negligent Supervision.1141 VI. Statute of Limitations.1142 A. The Amfac Cases: Errors in Litigation.1142 B. Amfac Does Not Apply to Non-Litigation Injury.1143 C. “Unsound Mind” Tolling Does Not Apply.1144 1. The Meaning of “Unsound Mind”...................................1144 2. Quantum of Evidence to Defeat Summary Judgment..................1144 3. Insufficient Evidence of Inability to Understand Legal Rights .........1146 4. Insufficient Evidence of Inability to Manage Daily Affairs.............1147 i. Expert Affidavits............................................1148 a. Dr. Rutter...............................................1148 b. Dr. Harrison............................................1148 c. Dr. Wilson..............................................1149 ii. Declarations of Family and Friends............................1149 a. 1999....................................................1150 b. 2000....................................................1150 c. 2001....................................................1151 d. 2002....................................................1151 ni. Rule 56(c) Declarations.......................................1151 5. Conclusion......................................................1152 D. Equitable Tolling Is Unwarranted.....................................1153 VII. Causation...............................................................1153 A. Cecala’s Theory of Causation Is Insufficient.............................1153 B. Procedural Issues....................................................1155 1. Newman Carried His Initial Burden under Rule 56(c).................1155 2. Cecala’s Supplemental Expert Affidavit Was Untimely................1156 C. Causation Evidence from Elliot’s Affidavits.............................1158 1. Newman’s “Ineffective Representation”.............................1158 2. Improper Selection of and Hostile Attitude Toward the NASD Arbitrators....................................................1159 3. Inadequate Discovery: Failure to File with the EEOC................1160 4. Loss of a Procedural Advantage: Foregoing Litigation................1161 5. Termination of the Representation.................................1162 D. Other Evidence of Causation..........................................1163 1. Hostile Work Environment Sexual Harassment Claim ................1163 2. Disparate Treatment Claim........................................1164 3. Evidence of Litigation Injury from Sexual Relationship...............1164 VIII. Failure to Assert Retaliation..............................................1165 A. Retaliatory Acts.....................................................1165 B. Constructive Discharge...............................................1166 1. Prima Facie Case for Constructive Discharge........................1167 2. The Omitted Alegation of Constructive Discharge Is Not Economically Viable............................................1168 C. Failure to Mitigate...................................................1169 D. Lost Opportunity to Recover Nominal Damages at a Net Loss to the Client Is Not Actionable Malpractice.................................1169 Pending before the court are Defendants’ Motion for Summary Judgment and Statement of Facts, as amended (“DSOF”) (Doc. ##171, 172, 246); Plaintiffs Response and Statement of Facts, as amended (“PSOF”) (Doc. ## 193, 188, 220); and Defendants’ Reply (Doc. # 206). Also before the court are Plaintiffs Notice of Filing (Doc. # 224) and Defendants’ Motion to Strike Cecala Declaration and Elliot Supplemental Affidavit (Doc. # 227). The court has reviewed the parties’ supplemental memoranda (Doc. ## 228, 229, 230) and the responses thereto (Doc. ##236, 237, 238). I. Factual Background Construing the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences in her favor, the admissible evidence shows the following. A. NationsBank This is an action for legal malpractice arising out of an employment dispute between Plaintiff Renee Cecala (“Cecala”) and her former employer, NationsBank (“Bank”), now Bank of America. Cecala began working for NationsBank in Charlotte, North Carolina in June 1994. (PSOF 19-20; DSOF Ex. 3, 4.) Cecala worked at various times in the capital markets, mortgage financing, and mortgage sales divisions of the Bank. (PSOF 19-20.) 1. The Underlying Employment Dispute Cecala contends that NationsBank discriminated against her because of her sex. (Id. at 20.) She “was not compensated fairly, compared to others similarly situated at the Bank, and at other like institutions,” and was denied promotions and deprived of human resources by Bank management. (Id. at 20-23; Ex. 18 at 2.) Cecala believes that she “flourished and even fostered growth and prosperity within two distinct departments” despite the “woefully inadequate support and resources she received.” (Id. Ex 18 at 2.) In addition to general underpayment and lack of resources, Cecala alleges that she was “victimized by sexual harassment [and] a hostile work environment” at NationsBank. (Doc. # 193 at 3; PSOF 23-24.) The Bank’s “oppressive and hostile work environment ... caused her great physical and emotional distress.” (Id. Ex. 18 at 2.) From 1994 through 1996, Cecala lodged complaints with senior Bank management about “compensation, promotions, and resources,” but NationsBank did not address her concerns. (Id. at 21.) 2. Retaining Lawyer Newman In January 1997, Cecala hired New York attorney David B. Newman of the law firm of Cooperman Levitt Winikoff Lester & Newman, P.C. (“Cooperman Levitt”), to represent her in negotiations with Nations-Bank. (Doc. # 171 at 3.) Newman sent a letter to the president of NationsBank Capital Markets on February 20, 1997, briefly describing Cecala’s concerns and expressing his desire “to discuss this matter with you with the hope of resolving these issues short of further legal action.” (DSOF Ex. 5.) The Bank replied: “We view this is an internal matter and will work with Ms. Cecala to address any concerns she may have.” (Id. Ex. 6.) Bank officials did meet with Cecala on several occasions. (DSOF Ex. 1, RC-00368-72 (arbitration transcript hereinafter referenced by Bates number).) In an effort to resolve Cecala’s allegations of gender discrimination, the Bank promised her a “meaningful role” in the mortgage finance department, and offered a $10,000 increase in compensation to match her alleged male comparator. (RC-00370.) Cecala refused the offer as unresponsive to her concerns, unreasonable, and unfair. (RC-00371.) Cecala alleges that Nations-Bank retaliated by, among other things, “interrogat[ing],” “embarrassing],” “ostracizing],” “ignoring]” and “[freezing her] out of the work she had been doing.” (Doc. # 193 at 3; PSOF 18.) “These conditions became so intolerable that, in March 199[7], she resigned.” (Doc. # 193 at 3.) Cecala did not seek legal advice from Newman before making this decision. Whether Cecala voluntarily resigned or was “constructively discharged” for complaining about her working conditions is disputed by the parties, as discussed below. (Doc. # 229 at 3-7.) 3.Mitigation of Damages Cecala interviewed for an investment banking job at Goldman Sachs, New York, shortly after resigning from NationsBank. (PSOF 1.) Although she now denies it (Id. at 1-2), Cecala originally testified that Goldman Sachs offered to hire her as an investment banker. (RC-00748-49.) Cecala declined the offer upon learning that her salary and benefits at Goldman Sachs would not exceed the compensation provided by NationsBank, which she viewed as “below market,” “discriminatory,” and “one of the reasons [she] resigned from NationsBank” in the first instance. (RC-00749; PSOF 2.) Cecala does not recall discussing the Goldman Sachs offer or any other issue related to mitigation of damages with her attorney. (Id. at 2.) 4. Litigation Strategy Lawyer Newman commenced arbitration under the auspices of the National Association of Securities Dealers (“NASD”) in September 1997. (Doc. # 171 at 5.) Newman’s choice of forum was influenced by the arbitration agreement executed by Cecala in connection with her employment at NationsBank (Id. at 5.) The Statement of Claim alleges, among other things, a right of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, for disparate pay and career advancement relative to Cecala’s male colleagues, and hostile work environment sexual harassment. (DSOF Ex. 9.) Newman’s initiatory pleading did not include a claim for retaliation or an allegation of constructive discharge. (Doc. # 193 at 16.) Newman and his associate Kenneth Rubinstein also contemplated filing a charge against NationsBank with the Charlotte District Office of the Equal Employment Opportunity Commission (“EEOC”). In the summer of 1997, Newman and Mr. Rubinstein drafted an affidavit and sought local North Carolina counsel for that purpose. (Doc. # 171 at 6; 182 Ex. B Attach. 1-2.) Cecala’s lawyers never lodged a charge with the EEOC. (PSOF 4; Ex. 14 at 12.) B. NASD Arbitration Pursuant to NASD procedure, a three-member panel convened in Charlotte, North Carolina, for 18 full days (36 half-day sessions) of arbitration between August 6, 1998, and October 20, 1999 (Case No. 97-04551). (DSOF Ex. 14 at 3-4.) Newman represented Cecala before the tribunal for 34 of the half-day sessions, until June 21, 1999, when Cecala formally discharged him under disputed circumstances. (Doc. # 193 at 5.) Cecala demanded her client file shortly thereafter, but Newman refused to return it until 2000 because of a billing dispute. (Doc. # 171 at 6; Cecala Dep. Jan. 5, 2007 p. 302.) Cecala attempted to retain a new lawyer in July 1999. (Doc. # 182 Ex. B, 1.) She was unsuccessful, and Cecala represented herself during the last two arbitration hearings in October 1999. (DSOF Ex. 14 at 2; Doc. # 246; Doc. # 171 at 6.) Cecala’s testimony in the arbitration hearing was contradicted by witness after witness from the Bank. She suffered a withering cross-examination gravely injurious to specific assertions and to her credibility in general. (E.g., RC-00479-81; RC-00658; RC-00664; RC-007611-13; RC-01129-34.) The NASD arbitrators rendered their award on February 10, 2000, finding in favor of NationsBank on all claims. Ceca-la attempted to vacate the adverse decision of the arbitral tribunal in the federal courts pursuant to Section 10(a) of the Federal Arbitration Act, 9 U.S.C. (Doc. # 182 Ex. B at 2.) She was unsuccessful. Cecala v. NationsBank Corp., No: 3:00-mc-00039 (D.N.C. Apr. 4, 2001) (denying the motion to vacate); Cecala v. Nations-Bank Corp., 40 Fed.Appx. 795, 796 (4th Cir.2002) (upholding the district court’s decision). The NASD award became finally enforceable on November 21, 2002. (Doc. # 65 at 2.) C. Cecala’s Relationship with Newman Cecala alleges that she had a non-consensual, sexual relationship with lawyer Newman. She contends further that their “relationship ... adversely affect[ed] [Newman’s] legal representation.” (Doc. # 193 at 4.) Cecala submits that Newman “engaged in sexual conduct, including sexual contact” with her on multiple occasions and in various locations from August 1998, through June 14, 1999, “as a condition to perform legal services” and without her effective consent. (Id. at 15-17.) Cecala terminated her sexual relationship with Newman on the eve of the June 1999, arbitration hearing. “Just before the hearing date Ms. Cecala reached her breaking point. She became so distraught and upset with Newman that she fired him — or, more accurately, his conduct caused her to fire him' — preferring to go it alone rather than continue to endure his demands for sex.” (Id. at 5.) Newman denies that he had a sexual relationship with Cecala, and he offers an alternative explanation for his discharge in a June 17, 1999 memorandum. (DSOF Ex. 3 at 2; Ex. 10.) Cecala was severely affected by her relationship with Newman and her litigation losses both in the NASD arbitration and in the federal courts. (PSOF 25-29.) D. Malpractice Litigation Cecala first considered taking legal action against her former attorney between December 1999 and January 2000. (DSOF Cecala Dep. 163.) Cecala contacted the North Carolina law firm of Ferguson Stein Chambers in “early 2002, to discuss representation in pursuing Mr. Newman for malpractice,” but she did not retain counsel at that time. (Doc. # 182 Ex. B, 2.) Cecala filed a pro se lawsuit for malpractice against Newman and his law partners at Cooperman Levitt in the Maricopa County Superior Court on April 18, 2003. (DSOF Ex. 16.) The case was dismissed for lack of prosecution. (Doc. # 171 at 7.) After she retained counsel, Cecala resumed legal action against her former attorney and his firm in federal court on November 21, 2004. (Doc. # 1.) The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(1). II. Summary Judgment Standard Rule 56(c), Fed.R.Civ.P., provides that summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The court must evaluate a party’s motion for summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nature of this responsibility varies, however, depending on whether the legal issues are ones on which the movant or the non-movant would bear the burden of proof at trial. If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may carry its initial burden of production under Rule 56(c) by producing “evidence negating an essential element of the nonmoving party’s case,” or by showing, “after suitable discovery,” that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir.2000); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990). Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate against a party who “fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538, (1986) (nonmovant’s showing of “some metaphysical doubt” as to material facts insufficient); see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). Summary judgment is not appropriate when the non-moving party identifies or produces evidence from which a reasonable juror, drawing all inferences in favor of the non-moving party, could return a verdict in the nonmoving party’s favor. United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir.1999). III. Legal Malpractice in Arizona The court has not been favored with any briefing as to whether the substantive law of Arizona or that of any other jurisdiction in which Newman’s conduct occurred supplies the rule of decision in this diversity action. The court therefore takes it that Arizona law applies and that Cecala and Newman have waived any different position. (Doc. ## 171, 193.) Arizona adheres in all significant respects to the majority view of legal malpractice. Therefore, it is unlikely that application of the law of New York or North Carolina would lead to a different result. A. Two Theories of Malpractice Liability In Arizona, “an attorney must act for his client in a reasonably careful and skillful manner in light of his special professional knowledge.” Martin v. Burns, 102 Ariz. 341, 343, 429 P.2d 660, 662 (1967). A lawyer is also a fiduciary with a duty of loyalty, confidentiality, and obedience to the client. In re Estate of Shano, 177 Ariz. 550, 557, 869 P.2d 1203, 1210 (Ct.App.1993). Indeed, “[t]he Arizona courts have long held that an attorney is bound to discharge his duties to his client with strictest fidelity and to observe the highest and utmost good faith.” Talbot v. Schroeder, 13 Ariz.App. 230, 231, 475 P.2d 520, 521 (1970); see Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, J.). The duties of care and loyalty, though coextensive, create two independent bases of tort liability in Arizona. See Barmat v. John & Jane Doe Partners AD, 155 Ariz. 519, 522, 747 P.2d 1218, 1221 (1987); Schroeder v. Hudgins, 142 Ariz. 395, 690 P.2d 114 (Ct.App.1984). A duly licensed attorney may be liable in Arizona for departing from the applicable standard of care under the law of negligence. As a fiduciary, the lawyer may also be liable for breaching his duties of loyalty and confidentiality. Leading commentators distinguish the bases of malpractice liability as follows: “[A]n attorney’s duties to a client include two obligations: (1) competent representation and (2) compliance with fiduciary obligations. The fiduciary obligations set a standard of ‘conduct,’ analogous to the standard of ‘care,’ which pertains to the requisite skill, knowledge and diligence. Thus, the standard of care concerns negligence and the standard of conduct concerns breach of loyalty or confidentiality.” 2 Ronald E. Mallen & Jeffery M. Smith, Legal Malpractice § 14:2 at 585-86 (2007) (hereinafter “Legal Malpractice ”); Restatement (Third) of the Law Governing Lawyers § 49 (2000) (tracking this distinction). It follows that an attorney may be liable for malpractice under Arizona law for departing from the standard of care, for breaching the standard of conduct, or both. See Smith v. Mehaffy, 30 P.3d 727, 733 (Colo.Ct.App.2000) (distinguishing, in a practical manner, between the dual bases of malpractice liability). B. A Prima Facie Case Although held to standards of care and loyalty, lawyers are not guarantors of successful litigation outcomes. Talbot, 13 Ariz.App. at 231, 475 P.2d at 521. Malpractice liability attaches only when the breach of the applicable standard of care or conduct is the cause in fact and legal cause of a cognizable injury to the client. 1.Cognizable Injury In an action for legal malpractice, “injury” means “the loss of a right, remedy or interest, or the imposition of liability.” 3 Legal Malpractice § 20:1 at 3. A cause of action for legal malpractice, whether sounding in negligence or fiduciary breach, will not lie where “mental injury is the sole complaint.” Id. § 20:11 at 31; Deno v. Transamerica Title Ins. Co., 126 Ariz. 527, 530, 617 P.2d 35, 38 (Ct.App.1980). “Damages,” in contrast, concern “the measure of that injury.” Id. at 3; Commercial Union Ins. Co. v. Lewis & Roca, 183 Ariz. 250, 255 n. 4, 902 P.2d 1354, 1359 n. 4 (Ct.App.1995). As discussed in further detail below, economic damages proximately caused by malpractice are recoverable, and mental injury damages may also be awarded pursuant to Arizona law if they are a consequence of the attorney’s “willful fiduciary breach.” Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 318, 903 P.2d 621, 626 (Ct.App.1995). 2. Attorney Negligence Malpractice The “basic elements” of a prima facie case for attorney negligence are the same “as in any negligence action.” Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (Ct.App.1986). To make a prima facie case, the plaintiff must establish: “(1) the existence of an attorney-client relationship which imposes a duty on the attorney to exercise that degree of skill, care, and knowledge commonly exercised by members of the profession, (2) breach of that duty, (3) that such negligence was the proximate cause of resulting injury, and (4) the fact and extent of the injury.” Id. at 418, 733 P.2d at 303. 3. Fiduciary Breach Malpractice The Arizona courts have not specifically addressed the elements of a claim of malpractice sounding in fiduciary breach. As a general matter, this cause of action entitles “a protected person (such as a beneficiary of an express trust or a client), commonly referred to as the principal, to recover against a person (such as a trustee or a lawyer), commonly called the agent, for a violation of the duties of the fiduciary.” Charles W. Wolfram, A Cautionary Tale: Fiduciary Breach as Legal Malpractice, 34 Hofstra L.Rev. 689, 705 (2005). “That concept has a long history in decisions finding a lawyer liable to a client for fiduciary breach, and it remains the base of all such claims.” Id. The Arizona Supreme Court would likely conclude, in line with the majority view, that “the essential elements of legal malpractice based on breach of fiduciary duty include the following: (1) an attorney-client relationship; (2) breach of the attorney’s fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client.” Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290-93 (Utah Ct.App.1996); accord 2 Legal Malpractice § 14:2 at 589; Restatement (Third) of the Law Governing Lawyers § 49 cmt. e (2000) (“[T]he rules concerning causation, damages, and defenses that apply to lawyer negligence actions also govern actions for breach of fiduciary duty.”). Proof of a cognizable injury is required to state a claim for malpractice, whether sounding in negligence or fiduciary breach. See Schweizer v. Mulvehill, 93 F.Supp.2d 376, 395-96 (S.D.N.Y.2000) (“The loss attributable to malpractice must be real and not hypothetical, and the damages must be readily measurable in economic terms.”) The client’s after-the-fact emotional suffering from a consensual sexual relation with her attorney is not actionable without more. “Intangibles such as shame, humiliation, and emotional distress” do not constitute “injury” for fiduciary breach malpractice, as “[pjermitting ... intangible injury in the form of emotional distress to replace proof of actual damages would circumvent the statutory limitations on such claims as criminal conversation and alienation of affections.” Margit Livingston, When Libido Subverts Credo: Regulation of Attorney-Client Sexual Relations, 62 Fordham L.Rev. 5, 28 (1993). A New York trial court recently applied this rule to deny recovery to a plaintiff-client who entered into a consensual sexual relationship with her attorney without any independently inappropriate conduct on the part of the lawyer, such as coercion. Guiles v. Simser, 9 Misc.3d 1083, 804 N.Y.S.2d 904 (Sup.Ct.2005), aff'd, 35 A.D.3d 1054, 826 N.Y.S.2d 484 (2006). “Unlike the typical case ... there is no evidence here that defendant misused information disclosed by the client in any manner resulting in a detriment to her legal position or that he bartered his services for sex. Nor is there any proof of damages to the client by reason of erroneous, inadequate or laggardly legal advice or dilatory tactics by the lawyer in dealing with the matter entrusted to him.... In short, plaintiff has shown no injury to her position in relation to her case.” Id. at 908; Vallinoto v. DiSandro, 688 A.2d 830, 835 (1997) (same); cf. McDaniel v. Gile, 230 Cal.App.3d 363, 281 Cal.Rptr. 242 (Cal. Ct.App.1991) (attorney’s withholding of legal services to gain sexual favors, where the quid pro quo caused client’s legal position in divorce action to suffer, was a cognizable injury for purposes of breach of fiduciary duty and constituted outrageous conduct for claim of intentional infliction of emotional distress). C. Trial Methodology The “case-within-a-case” method is the “accepted and traditional means of resolving the issues involved in the underlying proceeding in a legal malpractice action,” whether sounding in negligence or breach of fiduciary duty. 4 Legal Malpractice § 33:9 at 1046. Under this approach, “the allegedly negligent attorney becomes the proxy for or steps into the shoes of the original offending defendant.” Arciniega v. Bank of San Bernardino, 52 Cal.App.4th 213, 230, 60 Cal.Rptr.2d 495, 506 (Ct.App.1997). The Arciniega court observed that the “misperforming lawyer is deemed to constitute the same ‘target,’ legally speaking, as the original offending defendant. Because of the legal malpractice, the original target is out of range; thus, the misperforming attorney must stand in and submit to being the target instead of the former target which the attorney negligently permitted to escape. This is the essence of the case-within-a case doctrine.” Id. at 230, 60 Cal.Rptr.2d at 506. “In a jury trial, the court examines the elements of a cause of action for legal malpractice or of an asserted defense to determine what issues the court will decide and what issues will be submitted to the jury.” 4 Legal Malpractice § 33:12 at 1079. In Phillips, the Arizona Court of Appeals considered the issue of the “appropriate arbiter,” and concluded that the resolution of “legal issues ... is reserved for the exclusive province of judges,” while “the jury in the malpractice case should decide the disputed factual issues pertaining to the original suit.” 152 Ariz. at 421, 733 P.2d at 306; Molever v. Roush, 152 Ariz. 367, 374, 732 P.2d 1105, 1112 (Ct.App.1986). The division of responsibility between the judge and the jury is “founded on the premise that the object of the second trial is not to determine what the original judge would actually have done. Rather, the issue in the malpractice case is what the outcome should have been if the issue had been properly presented.” Phillips, 152 Ariz. at 421-22, 733 P.2d at 306-07 (citation and internal quotations omitted) (emphasis in original). “A jury is fully capable of replicating the judgment of another fact-finding tribunal, whatever its composition.” Id. at 421-22, 733 P.2d at 306-07 (citation and internal quotations omitted). However, “no matter the factual issue, the ... rule is that, if the evidence is undisputed or so conclusive that reasonable persons would not disagree, the resolution presents a question of law for the court.” 4 Legal Malpractice § 33:12 at 1080; Talbot, 13 Ariz.App. at 231, 475 P.2d at 521 (same). D. Causation 1. “But-For” Causation When the malpractice sounds in negligence, “the plaintiff must prove that but for the attorney’s negligence, he would have been successful in the prosecution or defense of the original suit.” Phillips, 152 Ariz. at 418, 733 P.2d at 303. “Conversely, ‘but-for’ causation does not exist if the event would have occurred without the lawyer’s conduct.” 1 Legal Malpractice § 8:5 at 984. “Where the attorney’s error was an omission, the inquiry is, assuming the attorney performed the act, would the plaintiff have achieved the claimed benefit?” Id. at 984. To prove “but-for” causation, the plaintiff must show that causation by the defendant’s act or omission is reasonably likely, not merely possible. This is the holding of Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P.2d 335 (1972), a case involving medical rather than legal malpractice. See Mann v. GTCR Golder Rauner, L.L.C., 351 B.R. 685 (D.Ariz.2006) (applying Purcell to a claim of legal malpractice). The Purcell court held that “[a]n essential element of the plaintiffs cause of action for negligence is that there must be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” 18 Ariz. App. at 82, 500 P.2d at 342. Thus, the plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” Id. at 82, 500 P.2d at 342. “Although a mere possibility of such causation is not enough, the plaintiff is not required to prove his case beyond a reasonable doubt and he need not negate entirely the possibility that defendant’s conduct was not a cause.” Id. at 82, 500 P.2d at 342. “All that is required in negligence cases is for the plaintiff to present probable facts from which negligence and causal relations may reasonably be inferred.” Id. at 82, 500 P.2d at 342; Thompson v. Sun City Cmty. Hosp., 141 Ariz. 597, 606, 688 P.2d 605, 614 (1984) (“[p]laintiff fails in his burden of proof and a verdict is directed if the evidence does not warrant a finding that the chance of recovery ... absent defendant’s negligence, was over 50%”); Salt River Valley Water Users’ Ass’n v. Blake, 53 Ariz. 498, 503-04, 90 P.2d 1004, 1007 (1939) (“juries may not return verdicts on surmise or speculation” as to the cause-in-fact of the injury). The meaning of “but-for” causation in the context of legal malpractice is addressed in Hyatt Regency Phoenix Hotel Co. v. Winston, 184 Ariz. 120, 137, 907 P.2d 506, 523 (Ct.App.1995), an action for attorney negligence. The court endorsed a jury instruction that “[mjalpractice causes economic loss if it helps to produce the loss and the economic loss would not have happened without the malpractice, ” observing that the “emphasized language has the same meaning as the ‘but for’ formulation, and it is the preferred instruction in negligence cases.” Id. at 137, 907 P.2d at 523 (emphasis in original). The case-within-a-case methodology requires the appropriate arbiter to determine what the result “should have been,” not what it “could have been.” Phillips, 152 Ariz. at 421, 733 P.2d at 306 (emphasis in original). Determining what “could have” or “might have” been decided in the underlying action is speculative and is not the objective of an action for legal malpractice. 4 Legal Malpractice § 33:8 at 1044. “Those allegations are not sufficient for sustaining causation in a complaint.” Id. at 1044. “Where proof of causation would be left to the jury’s speculation, a directed verdict is properly entered.” Tennen v. Lane, 149 Ariz. 94, 97, 716 P.2d 1031, 1034 (1986). 2. Proximate Causation and Foreseeability of the Injury The malpractice plaintiff must also show that the attorney’s departure from the standard of care was the legal or proximate cause of her injury. Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 32, 945 P.2d 317, 345 (Ct.App. 1996); Rogers v. Retrum, 170 Ariz. 399, 401, 825 P.2d 20 (Ct.App.1991) (distinguishing between cause in fact and legal cause); Phillips, 152 Ariz. at 418, 733 P.2d at 303 (requiring both “but-for” and “proximate” causation); see Royal Ins. Co. of Am. v. Miles & Stockbridge, P.C., 133 F.Supp.2d 747, 758 (D.Md.2001) (distinguishing between cause in fact and legal cause in attorney-negligence malpractice). In McDowell v. Davis, 104 Ariz. 69, 71, 448 P.2d 869, 871 (1968), a case involving the negligent operation of an automobile, the court observed that “proximate cause” has been unvaryingly defined in this State as follows: The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred. Id. at 71, 448 P.2d at 871. This definition of proximate causation subsumes the separate requirement of cause in fact. “A prerequisite to any determination of proximate cause is a showing of cause in fact; the defendant’s wrongful conduct must be a cause in fact of the plaintiffs injury before there can be liability.” Jefferson L. Lankford & Douglas A. Blaze, 1-4 The Law of Negligence in Arizona § 4.02 (3d ed.2005) (citation and internal quotations omitted) (hereinafter “Negligence in Arizona” ). In Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990), a failure-to-warn case, the court explained that proximate cause focuses on the foreseeability of the injury, not the degree of culpability of the defendant or the amount of harm caused by his particular act or omission. “The defendant’s act or omission need not be a ‘large’ or ‘abundant’ cause of the injury,” the court explained. Id. at 546, 789 P.2d at 1047. “[E]ven if the defendant’s conduct contributes ‘only a little’ to plaintiffs damages, liability exists if the damages would not have occurred but for the conduct.” Id. at 546, 789 P.2d at 1047 (citations and internal quotations omitted). The concept was illustrated with a discussion of intervening causes. Under Arizona’s formulation of “proximate cause,” an “efficient intervening cause” can absolve a tortfeasor from liability even if he was the cause in fact of the injury. McDowell, 104 Ariz. at 71, 448 P.2d at 871 “An intervening cause is an independent cause that intervenes between defendant’s original negligent act or omission and the final result and is necessary in bringing about that result.” Robertson, 163 Ariz. at 545, 789 P.2d at 1047. “Not all intervening acts are superseding causes,” cautioned the court. Id. at 545, 789 P.2d at 1047. “A superseding cause sufficient to become the proximate cause of the final result and relieve defendant of liability for his original negligence, arises only when an intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary.” Id. at 545, 789 P.2d at 1047. It would be unfair to hold a defendant liable under such “extraordinary” circumstances. Rossell v. Volkswagen of Am., 147 Ariz. 160, 164, 709 P.2d 517, 521 (1985); Gipson v. Kasey, 496 Ariz. Adv. Rep. 41, 214 Ariz. 141, 150 P.3d 228 (2007); Thompson v. Better-Bilt Aluminum Prods. Co., 171 Ariz. 550, 554, 832 P.2d 203, 207 (1992); 1-4 Negligence in Arizona § 4.02. “In order to hold an actor liable for negligence, a plaintiff must prove that the plaintiff was in the foreseeable range of the negligent conduct, and that one of the dangers or risks that made the actor’s conduct negligent brought about the injury.” Barrett v. Harris, 207 Ariz. 374, 382, 86 P.3d 954, 962 (Ct.App.2004). Determining whether a defendant’s conduct was a but-for cause of the plaintiffs injury is logically distinct from, and a condition precedent to, analysis of whether plaintiff was “within the foreseeable range” of her lawyer’s negligent conduct. Id. at 382, 86 P.3d at 962. “Negligence,” the Barrett court emphasized, “is not actionable in the abstract.” Although a “tortfeasor can be liable if its conduct contributed ‘only a little’ to the plaintiffs damages,” the plaintiff must prove that the defendant’s act or omission is both a but-for cause and a legal cause of the complained-of injury before she may recover. Id. at 382, 86 P.3d at 962. 3. But-For Causation and Proximate Causation in Litigation Malpractice i. Subversion of the But-For Causation Requirement Cecala attempts to elide her burden of proof regarding cause in fact. In a summary judgment posture, the record evidence must allow a fair-minded juror to reasonably infer that, but for Newman’s negligence, Cecala should have prevailed in the NASD arbitration. Purcell, 18 Ariz. App. at 82, 500 P.2d at 342. Cecala contends, in contrast, that “cause-in-fact” exits if Newman’s act or omission contributed “only a little” to the plaintiffs injuries. (Doc. ## 193 at 13-14; 230 at 1; 236 at 2.) This fundamentally misstates the law. The “only a little” language upon which Cecala so heavily relies has no bearing on the cause-in-fact inquiry. The quoted language means only that, upon proof of but-for and legal causation, a defendant may be liable for the foreseeable results of his actions even if he was not the only or even the predominant cause of that injury. This confusion permeates Cecala’s theory of her case, and the error is fatal to her. By this confusion, she would absolve herself of the burden of showing how any reasonable trier of fact should have found for her in the arbitration, but for Newman’s negligent acts. Instead, she would empower a malpractice jury to find against her former attorney merely if his negligence contributed “only a little” to the arbitration loss that would have been lost anyway. This would abolish the “but-for” causation requirement. ii. The Judgment Error Rule, Speculativeness, and Lack of Foreseeability The foreseeability requirement of proximate causation is also pertinent and fatal to Cecala’s case. Proximate causation is addressed only after the plaintiff establishes that she should have prevailed but for the defendant-attorney’s malpractice. 1-4 Negligence in Arizona § 4.02. After crossing the but-for threshold, Ceca-la is required to show, by a preponderance of the evidence, that the litigation injury was foreseeable in the sense that the attorney-defendant should have anticipated the harm from the negligent act or omission. 1 Legal Malpractice § 8:5 at 984-85; see TIG Ins. Co. v. Giffin Winning Cohen & Bodewes, P.C., 444 F.3d 587, 592 (7th Cir. 2006) (holding that a law firm’s failure to produce documents in discovery was not the legal cause of the ensuing $1.2 million in attorney fees for discovery and sanctions). Under the judgment error rule, malpractice liability will not attach for tactical decisions made in good faith in the course of preparing or trying a case. Injury flowing from such errors in attorney judgment is not foreseeable as a matter of law. “Good faith,” explain leading commentators, “is based on an objective standard of whether the lawyer’s decisions were intended to benefit the client in the representation.” 4 Legal Malpractice § 30:8 Mallen and Smith explain the concept as follows: Some alleged errors that should not be the basis for legal malpractice consideration involve inherently judgmental decisions. Thus, considerations, such as the choice of the trier of fact, selection of venue, the style of presentation, should not support a legal malpractice claim. Although lawyers do make tactical decisions, a fundamental policy is that the result should not vary for such reasons. The standard for the case-within-a-case methodology is determining what the result “should have been,” not what it “could have been.... ” In hind sight, even the defendant-attorney probably would agree with the unhappy client that a different approach might have been more productive. Thus, the rule than attorney is not liable for a mere error in judgment is extremely appropriate and necessary to protect the attorney engaged in the conduct of a trial, who must continuously select between alternatives, none of which are necessarily wrong or right. 4 Legal Malpractice §§ 30:6 at 401; 30:40 at 601 (emphasis added). The rule of no liability for good faith litigation judgments can be viewed as a lack of proof of proximate causation or lack of proof of “but-for” causation. The speculativeness is fatal under either category. See Estate of Re v. Kornstein, Veisz & Wexler, 958 F.Supp. 907, 921, 924 (S.D.N.Y.1997) (Plaintiffs failed to show that there should have been a different result in arbitration if the attorneys adopted the strategies urged by them. “There is no evidence from which a trier of fact could infer that the same argument ... would have been dispositive if delivered with a different gloss and with greater zeal.... In short, plaintiffs’ hindsight determination that defendants were not rigorous enough or quick enough in advancing the disputed position is precisely the sort of second-guessing of counsel’s strategic judgment that does not rise to the level of legal malpractice.”) (citations and internal quotations omitted). 4. Fiduciary Breach Malpractice The same standards of actual and legal causation that govern an action for attorney negligence apply with equal force in an action for fiduciary breach, which is also tried under the “case-within-a-case” methodology. Kilpatrick, 909 P.2d at 1290-93; Weil Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271, 780 N.Y.S.2d 593, 596 (N.Y.App.Div.2004) (“We have never differentiated between the standard of causation [required] for a claim of legal malpractice and one for breach of fiduciary duty in the context of attorney liability. The claims are coextensive.”); cf. Milbank, Tweed, Hadley & McCloy v. Chan Cher Boon, 13 F.3d 537, 543 (2d Cir.1994) (relaxing the but-for causation standard for fiduciary breach under a now discredited interpretation of New York law); see I Legal Malpractice § 33:10 at 1073-74. IV. Cecala’s Second Amended Complaint Cecala’s Second Amended Complaint asserts four bases of attorney and law firm liability: 1) legal malpractice, 2) breach of fiduciary duty, 3) intentional infliction of emotional distress, and 4) negligent supervision. (Doc. # 67.) The first count challenges two discrete patterns of illicit conduct: 1) the mishandling of Cecala’s Title VII claims against NationsBank both prior to and during the NASD arbitration; and 2) the sexualization of the attorney-client relationship, which in Cecala’s view “impaired Newman’s judgment” and precluded dispassionate, objective representation. (Id. at 25.) Cecala avers that these patterns of tortious conduct converged to “cause[ ] or contribute[ ] to the loss of Cecala’s underlying employment claims,” leading to the forfeiture of money and equitable damages against NationsBank, the loss of “salary and benefits commensurate with her abilities and qualifications,” and injury to her reputation. (Id. at 26.) Though somewhat inartfully plead, Ceeala’s claim for “malpractice” sounds in negligence because it targets Newman’s multiple departures from the standard of care, and further alleges that these patterns of misconduct proximately caused Cecala to suffer pecuniary damages. (PSOF 14,17.) Count two, in contrast, asserts malpractice liability on a theory of fiduciary breach. Cecala submits that her former lawyer breached his duties of “loyalty, confidentiality, and disclosure” by “becoming sexually involved” with Cecala and “failing to terminate the representation in a responsible manner.” (Doc. # 67 at 28.) The gravamen of this claim is that Newman willfully abused the relationship of trust and confidence that exists between an attorney and his client by engaging in a pattern of “self-serving, manipulative and predatory” sexual conduct with Cecala without her effective consent. (Doc. # 193 at 8; PSOF 5-6.) Cecala avers that Newman’s willful violation of his fiduciary duties negatively impacted the quality of her legal representation, causing both economic and psychological injury. “In addition to the pecuniary damages” that she suffered “as a result of the loss of her monetary claims and equitable remedies against Nations-Bank, [Djefendant Newman’s conduct in sexualizing the attorney-client relationship caused further emotional, psychological, and physical damage to [P]laintiff.” (Doc. # 67 at 32.) Cecala’s causes of action for attorney negligence and breach of fiduciary duty complain, in part, of the same fundamental litigation injury: the loss of her otherwise meritorious claims against NationsBank. However, Cecala’s claim for breach of fiduciary duty seeks relief for psychological injury in addition to litigation injury. Y. Negligent Supervision Cecala’s fourth theory of recovery, which targets Newman’s law firm, need not detain the court for long. Cecala avers in her Second Amended Complaint that Cooperman Levitt “breached its duty of supervision” as well as “applicable attorney ethical rules to exercise reasonable care in supervising Newman.” (Doc. # 67 at 35.) Cecala alleges that she suffered pecuniary and psychological damages as a direct result of Cooperman Levitt’s failure “to supervise [Newman] adequately.” (Id.) This claim is plagued by numerous deficiencies. First, Cecala has failed to offer any evidence as to the standard of care from which the firm is alleged to have deviated. While a professional corporation may be liable under New York law for the torts of its employees under a theory of respondeat superior, Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383 (1981), Cecala has cited no authority in support of the proposition that Cooperman Levitt owed her an affirmative duty of supervision on the facts of this case, nor has she provided any insight as to what that duty might command. State ethics rules do not, of course, create private rights of action for aggrieved clients. “With few exceptions, the courts agree that the violation of an ethics rule alone does not create a cause of action, constitute legal malpractice per se or necessarily create a duty.” 2 Legal Malpractice § 19:7 at 1208. The Arizona Supreme Court expressly aligned itself with this majority view when it “declined to use the court’s own ethical standards as a basis upon which to impose legal malpractice liability.” Stanley v. McCarver, 208 Ariz. 219, 225 n. 6 92 P.3d 849, 855 n. 6 (2004) (citing Ariz. R. Sup.Ct. 42, R. Prof. Resp., Preamble, Scope ¶ 20 (noting that rules of professional responsibility “are not designed to be a basis for civil liability”)); Elliott v. Videan, 164 Ariz. 113, 116, 791 P.2d 639, 642 (Ct.App.1989) (discussing jury instructions). Cecala attempts to support her theory of negligent supervision with the affidavit of her legal ethics expert, Professor Geoffrey C. Hazard, Jr. (PSOF Ex. 11.) Professor Hazard opines that Cooperman Levitt failed to supervise Newman or take remedial action against Newman in violation of a legal duty. But his opinion is wholly speculative. First, Professor Hazard assumes that Cooperman Levitt’s failure to adhere to a New York Disciplinary Rule is actionable negligence. (Id. Ex. 11 at 7.) Stanley is directly to the contrary. Second, taking “the facts alleged by [Cecala] concerning sexual relations between her and [Newman] ... as true” Professor Hazard simply “assumes” that “one or more of’ Newman’s law partners knew or reasonably should have known of the sexual relationship between Newman and Cecala. (Id Ex. 11 at 2, 7.) There is no factual or evidentiary foundation for this assumption. (Id. Ex. 11 at 2.) Finally, even assuming that Cooperman Levitt did owe some “duty of supervision” to its client, Cecala has failed to adduce any evidence tending to show that, but for the breach of that legal duty, the firm would have detected and would have stopped the inappropriate relationship between Newman and his client. Professor Hazard cannot manufacture a genuine issue of fact by assuming facts without evidence and liability without law. (Id. Ex. 11 at 8.) Summary judgment will be granted against Cecala’s claim for negligent supervision for failure “to establish the existence of an element essential to [her] case, and on which [Cecala] will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. VI. Statute of Limitations Section 12-542, Arizona Revised Statutes, prescribes a two-year limitations period “for injuries done to the person of another including causes of action for ... malpractice.” “The determination of when a cause of action accrues on a claim for legal malpractice is governed by the discovery rule.” Commercial Union, 183 Ariz. at 254, 902 P.2d at 1358. Under that rule, the statute of limitations does not begin to run until a plaintiff has actual or constructive knowledge that she has suffered an “actionable wrong,” defined as a “tort that results in appreciable non-speculative harm.” Manterola v. Farmers Ins. Exch., 200 Ariz. 572, 576, 30 P.3d 639, 643 (Ct.App.2001) (citations and internal quotations omitted). “Commencement of the statute of limitations will not be put off until one learns the full extent of his damages. Rather, the statute commences to run when the plaintiff incurs some injury or damaging effect from the malpractice.” Commercial Union, 183 Ariz. at 255, 902 P.2d at 1359. The parties agree that Cecala’s three remaining theories of recovery are subject to this two-year limitations period. (Doc. # 171 at 9.) Newman urges the court to dismiss “all claims, however denominated,” for failure to comply with A.R.S. § 12-542. (Id. at 7.) However, Cecala’s litigation malpractice claims were timely filed pursuant to an exception to that limitations period. The claims for intentional infliction of emotional distress and for psychological injury from breach of fiduciary duty are entitled to no such exception, and therefore are out-of-time. A. The Amfac Cases: Errors in Litigation In the litigation context, “the injury or damaging effect on the unsuccessful party [in an action for litigation legal malpractice] is not ascertainable until the appellate process is completed or is waived by failure to appeal.” Amfac Distrib. Corp. v. Miller, 138 Ariz. 152, 153-54, 673 P.2d 792, 794 (1983) (“Amfac I”); Amfac Distrib. Corp. v. Miller, 138 Ariz. 155, 157, 673 P.2d 795, 797 (Ct.App.1983) (“Amfac II”) (“it is only when the litigation is terminated and the client’s rights are ‘fixed’ that it can safely be said that the lawyer’s misdeeds resulted in injury to the client”). Because “apparent damage may vanish with successful prosecution of an appeal and ultimate vindication of the attorney’s conduct by an appellate court,” and in order to “preserve the essential element of trust in the attorney-client relationship,” a cause of action for malpractice in the litigation context does not accrue until judicial review is exhausted or waived. Amfac II, 138 Ariz. at 156, 159, 673 P.2d at 796, 799; see Glaze v. Larsen, 207 Ariz. 26, 83 P.3d 26 (2004) (articulating the practical and policy rationales for the “errors-in-litigation” rule of accrual). In its October 11, 2005 Order, the court held Amfac I and its progeny applicable to malpractice in arbitration, stating that “accrual of a legal malpractice claim arising in arbitration begins when the judicial review of the arbitration award is concluded and the appellate process is completed or is waived by a failure to appeal.” (Doc. # 65 at 9.) Although Newman’s allegedly negligent representation was complete on or around June 21, 1999, the date he was formally discharged by Cecala, the statute of limitations did not begin to run as to his departures from the standard of care until November 21, 2002, when Cecala abandoned further judicial review of the adverse arbitral award. (Id. at 2.) Thus, Cecala’s count of attorney negligence was timely filed on November 21, 2004. Cecala’s fiduciary breach claim, having been filed in November 2004, is untimely under A.R.S. § 12-542 unless it is sheltered by the Amfac cases or some other exception to the two-year limitations period. Though it is a novel question, the court also finds that, to the extent it claims injury to her case against NationsBank, Cecala's claim for fiduciary breach was timely filed under Amfac I and its progeny. As explained in the court’s prior Order, the Amfac cases delay the accrual of a cause of action for malpractice when the tangible injury upon which that claim is founded could “vanish with successful prosecution of an appeal.” Amfac II, 138 Ariz. at 156, 159, 673 P.2d at 796, 799. The litigation-injury component of Cecala’s claim for fiduciary breach is predicated upon the adverse decision of the arbitral tribunal. Setting aside that award would likely have cured that injury. B. Amfac Does Not Apply to Non-Litigation Injury Cecala alleges that Newman’s “outrageous” sexual conduct began on August 1998, and continued until June 1999. (Doc. # 193 at 9.) Assaying the facts in the light most favorable to her, Cecala’s claim for intentional infliction of emotional distress accrued, at the latest, on June 21, 1999, when she discharged her lawyer and ended their sexual relationship. See Floyd v. Donahue, 186 Ariz. 409, 413, 923 P.2d 875, 879 (Ct.App.1996) (discussing the doctrine of “continuing torts”). Therefore, absent an exception to A.R.S. § 12-542, Cecala’s claim for intentional infliction of emotional distress was out-of-time by three years and five months when filed on November 21, 2004. Cecala first contends that her intentional tort claim should be sheltered under Amfac I and its progeny because “Mr. Newman’s outrageous conduct cannot be separated from its adverse consequences that constitute malpractice.” (Doc. # 193 at 9.) Cecala has marshaled no authority for the proposition that the special rule for “errors in litigation” has any application to any tort where the injury is fixed when the tort is committed. No policy interest would be furthered by permitting a plaintiff to sleep on her rights when her attorney causes injury to her personhood rather than to her right to competent representation. Mindful of this, the reported decisions make clear that Amfac I and its progeny do not apply where, as here, the injury occurs contemporaneously with the malpractice, but the injury cannot be corrected by the successful prosecution of an appeal. Commercial Union, 183 Ariz. at 256, 902 P.2d at 1360 (citation omitted). Because it did not “arise in arbitration” within the meaning of the court’s prior Order, Cecala’s claim for intentional infliction of emotional distress accrued no later than June 21, 1999. (Doc. # 65 at 9.) Cecala’s fiduciary breach damages that stand free of her litigation injury, such as emotional suffering from Newman’s “predatory,” quid pro quo sexualization of the attorney-client relationship, also were fixed on June 21, 1999, the date she discharged Newman. Therefore, the accrual of that injury was on June 21, 1999, and was not delayed by Amfac I and its progeny. C. “Unsound Mind” Tolling Does Not Apply Cecala submits that her non-litigation claims are tolled by A.R.S. § 12-502, which provides, “If a person entitled to bring an action ... is at the time the cause of action accrues ... of unsound mind, the period of such disability shall not be deemed a portion of the period limited for commencement of the action.” “The statutory provision for tolling is premised on equitable principles similar to those that underlie the discovery rule: it is unfair to bar an action in which the plaintiff is mentally disabled and thus unable to appreciate or pursue his or her legal rights.” Doe v. Roe, 191 Ariz. 313, 325, 955 P.2d 951, 963 (1998) (emphasis in original). A litigant need not be institutionalized nor be adjudged legally incompetent to qualify for tolling under A.R.S. § 12-502. Riley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 141, 927 P.2d 796, 801 (Ct.App.1996). Cecala concedes that her claim for intentional infliction of emotional distress accrued on June 21, 1999, at the latest, five years and five months before filing this action. (Doc. # 193 at 11.) 1. The Meaning of “Unsound Mind” Section 12-502, Arizona Revised Statutes, does not supply a definition for the term “unsound mind,” so the courts have filled the gap. The leading cases are Doe and Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996). A person is of unsound mind when he is “unable to manage his daily affairs or to understand his legal rights or liabilities.” Doe, 191 Ariz. at 326, 955 P.2d at 964 (citation and internal quotations omitted). The definition is disjunctive: “Facts permitting ... Cecala is entitled to have the jury consider both alternatives.” Id. at 328, 955 P.2d at 966. The plaintiffs in Florez and Doe alleged that they had suffered sexual abuse during childhood and adolescence and, as a result of the enduring psychological ramifications of those injuries, remained fundamentally unaware of their right to sue, both at and after the time their claims accrued. Florez, 185 Ariz. at 521, 917 P.2d at 250; Doe, 191 Ariz. at 330, 955 P.2d at 968. The Doe court explained, “One who recalls ... repressed memories may not be able to connect the images in a fashion sufficiently coherent to allow an understanding of the incident or the resulting injury. Such a person may not be able to articulate events so as to pursue her rights.” Id. at 320, 955 P.2d at 958. However, in light of the countervailing policies implicated by the suspension of the limitations period, the Arizona Supreme Court held in Florez, as in Doe, that to defeat summary judgment a plaintiff must muster “hard evidence” to create a genuine issue of material fact as to her inability to appreciate or pursue her legal rights. In most cases, “the best guide to whether somebody can understand and pursue his legal rights is how that person behaves, not what that person says he or she cannot do.” Doe, 191 Ariz. at 332, 955 P.2d at 970 (Martone, J., concurring). 2. Quantum of Evidence to Defeat Summary Judgment “In the context of determining unsound mind as evidenced by an inability to manage daily affairs, the question [on a defense motion for summary judgment] is whether there is credible evidence of the plaintiffs inability to manage daily affairs.” Doe, 191 Ariz. at 327, 955 P.2d at 965 (emphasis in original). “The plaintiff is not required to discredit all evidence of ability to manage her affairs-sueh controverting evidence merely establishes that there is a jury question on an issue of material fact.” Id. at 328, 955 P.2d at 965. “It is not [for the trial court] to weigh conflicting evidence to determine whether the plaintiff was capable of functioning on a day-to-day basis. That role would encroach upon the jury’s function.” Id. at 328, 955 P.2d at 965. The same is true for the second prong of the test for unsound mind, where the burden is on the plaintiff to create a genuine issue of material fact as to her inability to understand and assert legal rights. Id. at 329, 955 P.2d at 967. “If there is hard evidence that a person is simply incapable of carrying on the day-to-day affairs of human existence, then the statute is tolled. Otherwise it is not. These are empirical facts easily verifiable and ... difficult to fabricate.” Florez, 185 Ariz. at 521, 917 P.2d at 255. “The purpose of the statute of limitations is to protect defendants and courts from stale [and fraudulent] claims where plaintiffs have slept on their rights.” Doe, 191 Ariz. at 322, 955 P.2d at 960 (citation and internal