Adversaries and Immunity

Adversaries and Immunity

A lawyer's duty to nonclients runs thinnest when the nonclient is the person the lawyer was hired to oppose. Two separate protections produce that result, and students often run them together. The first is the absence of any duty of care to an adversary, which defeats negligence claims at the threshold. The second is called attorney immunity in some states and the litigation privilege in others. It bars suits arising from a lawyer's conduct or statements in representing a client in litigation, and it can reach claims, such as fraud, that do not depend on a duty of care. This unit takes the no-duty rule first, then the immunity, then the limits on both and the controls that remain.

No Duty to Opposing Parties

A lawyer owes no duty of care to the opposing party. The grounds that earlier sections used to reach a nonclient (an implied client relationship, an intended benefit, invited reliance) are missing when the nonclient is the adversary, and the decisions show why courts decline to supply them.

In Flaherty, discussed earlier, a woman sued the lawyers who drafted a pre-nuptial agreement. She had her own counsel during the negotiation, and the Third Circuit held that, because the defendants did not represent her in negotiating the agreement, she could not sustain a malpractice claim based on their drafting.¹ Receiving a lawyer's work product does not make the recipient a client. The Restatement requires a request for representation before a relationship can arise by agreement or by mistake.²

The lawyers in the mortgagee case show the conflict at work. They were engaged to represent the mortgagee, whose economic interest and legal obligation was to secure the highest possible price for the property, while the bidders wanted to pay as little as possible. An attorney could not lawfully represent both sides of that transaction, so the court would not lightly presume or infer that the lawyers had also represented the bidders.³ The same logic explains the rule. A lawyer who owed the opponent a duty of care would have to protect the opponent from the consequences of pressing the client's position, and in a negotiation or lawsuit those interests collide by definition.

The absence of a duty also settles what happens after a malpractice suit is filed. A defendant lawyer sometimes tries to shift part of the loss to another lawyer through contribution, but contribution is available only from a person who qualifies as a joint tortfeasor. If the person from whom contribution is sought owed no duty to the plaintiff in the underlying action, contribution is denied.⁴ In Breen v. Law Office of Bruce A. Barket, P.C., a former wife sued her own divorce lawyers, and those lawyers sought reimbursement from the lawyer who had represented her former husband. The claims failed because nothing gave the husband's lawyer a duty of care to the wife or to her lawyers, so he was not a joint tortfeasor for whatever harm her own lawyers caused her.⁵ Co-counsel stand differently from opposing counsel. In Connell, Foley & Geiser, LLP v. Israel Travel Advisory Service, Inc., a New Jersey appellate court held that a contribution claim against co-counsel was validly stated, even though that lawyer was not admitted to practice in the state and was not named as a defendant in the malpractice action.⁶

Attorney Immunity and the Litigation Privilege

What some states treat as part of the judicial proceedings or litigation privilege, other states articulate as attorney immunity.⁸ In Cantey Hanger, LLP v. Byrd, a divorce litigant sued the opposing lawyers for fraud and related claims over a document the firm allegedly prepared to transfer personal property that the decree had awarded to its client.⁹ The Texas court described the defense as one meant to ensure "loyal, faithful, and aggressive representation by attorneys employed as advocates."¹⁰ As a general rule, attorneys are immune from civil liability to nonclients for actions taken in connection with representing a client in litigation. Even conduct that is wrongful in the context of the underlying suit is not actionable if it is part of the discharge of the lawyer's duties to the client.¹¹

The immunity parallels the no-duty rule. An advocate's job is to press one side's position against another's, so an opponent who lost ground to effective advocacy has a grievance in nearly every contested case. If each grievance could be tried as a tort claim, lawyers would have a personal reason to pull punches, and the adversary system depends on advocates who do not. The immunity also does work the no-duty rule cannot do, because it reaches claims such as fraud that never depended on a duty of care.

The judicial proceedings privilege reaches the same problem through the lawyer's speech. Courts apply an extremely liberal test of what statements are pertinent to litigation. The Second Circuit, for example, held that allegedly defamatory statements in an email about a fee dispute arising from litigation could not support a cause of action.¹² Applied to statements made in litigation, the privilege facilitates the search for the truth and the fearless performance by participants of their roles in adjudication.¹³

The privilege ordinarily applies only to claims arising from statements pertinent to litigation, but some courts extend it to what lawyers do as well as what they say. The Idaho Supreme Court in Taylor v. McNichols presumed an action barred by the litigation privilege when an attorney is sued by a current or former adversary of the client over actions or communications taken in the course of representing the client in litigation.¹⁴ The labels therefore differ from state to state, and the same protection may arrive as immunity, as privilege, or as a plain no-duty holding.

Limits and Other Controls

Both protections end at the boundary of the representation, and Bochetto v. Gibson shows where that boundary falls. Gibson's publication of a complaint to the trial court was clearly protected by the judicial proceedings privilege. Gibson's act of sending the same complaint to a reporter, Dudick, was an extrajudicial act outside the regular course of the proceedings and not relevant to them in any way, so the judicial proceedings privilege did not protect it. The court noted, however, that liability for faxing the complaint to the reporter might be barred by a qualified privilege.¹⁶ The document was the same in both acts. The audience and the connection to the lawsuit differed, and they decided the result.

The privilege also does not shield a lawyer from the lawyer's own client. It ordinarily applies only to claims arising from statements pertinent to litigation, so a garden-variety malpractice claim by a client, based on the lawyer's acts or omissions during a lawsuit, is not barred. As the California Court of Appeal observed in Kolar v. Donahue, McIntosh & Hammerton, there is no sound reason why litigators should be exempted from malpractice liability.¹⁷

States divide over fraud. Many courts note that a lawyer has no immunity for fraudulent conduct.¹⁸ Texas takes a different path and treats the question as one of scope. Fraud is not an exception to attorney immunity, but the defense does not extend to fraudulent conduct outside the scope of the legal representation, just as it does not extend to other wrongful conduct outside that scope. The lawyer who pleads immunity bears the burden of proving that the alleged conduct, whether or not it is labeled fraudulent, was part of discharging duties to the client.¹⁹ The fraud theories taught earlier in this chapter therefore meet a scope inquiry in a Texas-style state and no immunity defense at all in a state that excludes fraud entirely.

The protections leave the profession's other safeguards in place. Conduct that escapes tort liability remains subject to sanctions, contempt, and attorney disciplinary proceedings.²⁰ Those controls are one reason a court can shield advocacy from civil suits without leaving abusive litigation conduct unchecked.