Chapter 69 – When THE BAR LIES, Part III

TORT LAW REMEDIES IN THE EVENT OF ATTORNEY DECEIT. Republished content from “Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages.” By Alex B. Long.

Tort Claims Involving Deceit in Motion Practice

Theoretically, there are any number of tort claims a party might bring against an attorney who has engaged in deceptive conduct connected to a pleading or the filing of a motion. This is true of traditional and well-established tort claims, such as defamation and misrepresentation, as well as less common claims, such as malicious defense. For a variety of reasons, however, litigants asserting such claims face a difficult road.

1. Defamation
The tort of defamation is a logical choice for a party defamed by false allegations contained in a pleading or motion. However, because the absolute litigator’s privilege applies to all statements made in the institution of a judicial proceeding (including pleadings and affidavits), defamatory statements contained in pleadings or motions are likely to be privileged.101 Thus, individuals who have been the subject of false and defamatory allegations made in pleadings or motions have had little success in pursuing defamation claims.

2. Misrepresentation
A misrepresentation claim might be another theoretical possibility. However, the rule that a lawyer does not owe a duty of care to a non client would dispense with a negligent misrepresentation claim. An aggrieved party might also attempt to bring a fraudulent
misrepresentation claim. However, such a claim would likely fail on the merits. In order to prevail on a fraudulent misrepresentation claim, a plaintiff must establish not only that the defendant made a false statement of fact, but that the plaintiff justifiably relied on the misrepresentation to his or her detriment. If anyone is likely to be deceived by false allegations contained in a court filing, it is the court, not the victim of the false allegations. Thus, the fraud that is perpetrated is perpetrated (if at all) upon the court, not the subject of the misrepresentation.

3. Malicious Prosecution and Abuse of Process
Another possibility might be a malicious prosecution claim. To prevail on this theory, a plaintiff must establish that the defendant initiated or continued civil proceedings without probable cause and primarily for a purpose other than that of securing the proper adjudication of the claim. To have probable cause, a defendant must at least reasonably believe in the existence of the facts as alleged. Thus, alleging facts in the course of initiating or continuing civil proceedings without probable cause may amount to a form of deceit in some instances.
Given the potential for malicious prosecution claims to deter a party’s willingness to file suit in an attempt to vindicate his or her rights, courts sometimes remark that such actions are disfavored in the law. To that end, a substantial number of courts require that a plaintiff must demonstrate the existence of a “special injury” — “arrest, seizure of property, or ‘injury which would not necessarily result from suits to recover for like causes of action’ ” — as part of the prima facie case. Excluded from this definition is the expense incurred in defending against a baseless claim.

Another possibility for the subject of false allegations in connection with a court filing is an abuse of process claim. One court has explained that “[g]enerally, abuse of process consists of the willful or malicious misuse or misapplication of lawfully issued process to accomplish some purpose not intended or warranted by that process.” As the Restatement (Second) of Torts notes, “The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.” Although conceptually similar to the malicious prosecution tort, abuse of process is broader in the sense that it covers various processes (such as the filing of an appeal or even the filing of notice of an intent to take a deposition that are not covered under the former. At the same time, however, some jurisdictions have extended the absolute litigator’s privilege developed in the defamation context to abuse of process claims against lawyers, thereby limiting lawyers’ liability.

4. Malicious Defense
Another potentially relevant theory in the case of a lawyer who knowingly makes false assertions in connection with a motion is the tort of malicious defense. Where recognized, the tort parallels the malicious prosecution tort, but, as its name implies, from the defense perspective. Thus, one who initiates or continues a defense in a civil proceeding without probable cause primarily for an improper purpose (such as to delay or harass) and who causes damages may be liable under a malicious defense theory where the tort is recognized. As is the case with the majority approach to malicious prosecution claims, damages in this context would include emotional distress and the expense incurred in defending oneself in the proceeding.
In theory, the tort could be broad enough to cover a variety of litigation tactics, ranging from denying, in bad faith, a valid claim while adopting a scorched-earth approach to litigation to making false assertions or introducing fabricated evidence in support of a motion during litigation. The first jurisdiction to recognize such claims was the New Hampshire Supreme Court in Aranson v. Schroeder in 1995. In recognizing the existence of the tort, the court noted the inconsistency in permitting a plaintiff to recover when a groundless claim was asserted offensively, but not defensively. In addition, the court suggested that sanctions against the offending party were not, standing alone, a sufficient remedy for a plaintiff.

C. Tort Claims Involving Deceit in the Discovery Process and in the
Presentation of Evidence

The victims of deceitful conduct occurring during the discovery process or as a result of deceitful conduct involving the presentation of false evidence face many of the same obstacles as the victims of dishonest motion practice. Most courts do not recognize malicious defense claims and often construe the abuse of process tort narrowly. Plaintiffs seeking recovery for discovery abuses also frequently bump against many of the same concerns courts have expressed in other contexts about permitting civil liability stemming from litigation-related misconduct. As a result, plaintiffs have tried to advance new theories of liability, with only limited success.

1. No Civil Remedy for Perjury
Virtually every jurisdiction has concluded that there is no civil cause of action for perjury. Because a witness’s false statements amount to a fraud upon the court or jury, rather than a litigant, there is no reliance on the part of the litigant; thus, a common law fraudulent
misrepresentation claim would not cover perjurious testimony. This has left courts to consider whether a separate cause of action should exist in the case of perjured testimony.

2. Spoliation of Evidence
Another possibility in the case of deceit in the discovery process or in the presentation of evidence is a tort claim of interference with the litigation process through the spoliation of evidence. In addition to judicial sanctions and the adverse evidentiary inference against the offending party, one possible solution to the problem of intentional destruction, alteration, or concealment of evidence would be the recognition of an independent spoliation of evidence tort. However, the majority of courts have refused to recognize such a theory. In refusing to recognize spoliation tort claims, courts frequently assert that the existence of professional discipline and the availability of judicial sanctions are adequate to deter spoliation. Ultimately, the majority of courts thus far have concluded that the costs of recognizing an independent spoliation tort in terms of the uncertain nature of the tort and increased litigation outweigh the benefits.

If you plan on moving to Oregon, beware. The Oregon State Bar has a war chest and it is used to exploit citizens for the benefit of Bar members, not to protect the citizens of this state. There is no violation of an attorneys code of ethics that the Bar will not ignore. The way we change that is to set up a separate state agency to manage admissions, discipline, etc.

When the Oregon State Bar hires outside counsel to intentionally lie, to do whatever is necessary to win a case that if lost would require the OSB Professional Liability Fund to pay damages, then its time to separate the citizen protection functions from THE BAR. The PLF may be independently run, but it is not a separate organization with adverse interests to the BAR.

Reporting to the BAR does nothing unfortunately. It’s more than sad. It’s a crime, but a crime that enjoys absolute immunity.

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