Chapter 68 – When THE BAR LIES, Part II

Lets spend a little time addressing Tort law remedies in the event of attorney deceit. Republished from Attorney Deceit Statutes:Promoting Professionalism Through Criminal Prosecutions and Treble Damages, by Alex B. Long.deceitful-attorneys

TORT LAW REMEDIES IN THE EVENT OF ATTORNEY DECEIT
In addition to facing professional discipline and judicial sanctions for engaging in deceit during the course of representing a client, there is always the possibility of civil liability for lawyers. There are a variety of tort theories that might potentially apply to a lawyer’s deceptive conduct. However, in addition to the restrictive nature of some of these torts, courts have devised a number of special rules that tend to shield lawyers from liability.

A. Special Tort Rules that Apply to the Legal Profession
Before examining how general tort theories apply to situations involving attorney deceit, it is important first to note some of the special tort rules for lawyers. These are rules that cast a long shadow over the tort law governing lawyers. Specifically, these are the black letter rules pertaining to the absence of any duty on the part of a lawyer to an opposing party and the absolute litigator’s privilege.

The general rule, repeated by numerous courts, is that a lawyer owes no duty of care to an opposing party. Thus, absent unusual circumstances, a lawyer who negligently makes a false statement of material fact to the opposing side does not face liability under a negligent misrepresentation theory. And although courts often state the rule in terms of liability under a negligence theory, courts sometimes reference the rule when dealing with intentional fraud claims against attorneys. Courts have cited the rule in shielding lawyers from liability where the lawyers have been accused of fraud resulting from the failure to disclose material information, including the failure to disclose the fact that the lawyer’s client has made a fraudulent statement.  Thus, the no-duty rule, although phrased in terms of negligence, has influence in the world of intentional torts as well.

The no-duty to non clients rule is merely the black-letter expression of one of the most pervasive themes involving the legal profession: the system of resolving legal disputes is an adversarial one. Each side is best served by having a lawyer looking out for its own interests.

Because a lawyer’s duties of confidentiality and loyalty run to the client, the threat of liability stemming from the failure voluntarily to disclose every potentially relevant fact would diminish the vigor andquality of representation.

A similar sentiment underlies the second reoccurring special tort rule for lawyers: the litigator’s privilege. As stated in section 586 of the Restatement (Second) of Torts, “[a]n attorney . . . is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Thus, for example, an attorney who makes false and defamatory allegations in a complaint and attaches a supporting affidavit containing another’s false and defamatory statements would enjoy an absolute privilege in a defamation action. It is important to note that the privilege is absolute in nature. The fact that a lawyer has good reason to suspect or has actual knowledge that allegations contained in a court filing are untrue does not deprive the lawyer of the privilege.  The policy underlying the decision to make the privilege absolute in nature is one “of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.”

Although developed in the defamation context, some jurisdictions have extended the privilege to other intentional torts, including tortious interference with contractual relations and abuse of process.

In a few cases, it has even been applied to claims of deceit or fraudulent misrepresentation involving lawyers. Thus, like the no duty to non clients rule, the litigator’s privilege reach extends beyond the confines of the area of its origin.

Next time we will address Tort claims in motion practice. Until next time.

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