Saturday, May 26, 2007

Ending Lawyer Immunity from Legal Malpractice Claims for Injuring the Adverse Third Party

“... although strict application of the privity rule contains a great potential for unrecompensable injury to innocent third persons, "to abandon the concept completely [would entail] too vast a range of the lawyer's potential liability to third parties."

"... the public interest demands that attorneys, in the proper exercise of their functions as such, not be liable to adverse parties for acts performed in good faith and for the honest purpose of protecting the interests of their clients."
Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984)

“All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and eight and justice administered without sale, denial or delay.”
Section 11. Pennsylvania Constitution

Lawyer Duties to the Adverse Party

Torts will improve a service or product, as a goal. It must make the injured party whole for the carelessness of the defendant. The lawyer profession has been deprived of these great benefits so far. The lawyer is the first party, the client, the second party. The client has privity, an economic relationship with the lawyer, and a legal right to a professional standard of performance and due care. The adverse third party is the other side. It is a neutral term. A plaintiff might get recourse from a defense attorney filing a frivolous defense claim.

Benefit of Third Party Tort is Not Available to the Lawyer

The U.S. Supreme Court granted immunity to the lawyer, from third party torts litigation, in 1880. National Savings v Ward, 100 US 195 (1880). Bank had no recourse for a lawyer’s negligent title search on a mortgaged property, due to lack of privity. No other group has privity as an absolute obstacle to torts. No liability is possible in the absence of fraud, collusion, or privity of contract today. A court held that a doctor suing a lawyer for legal malpractice, in filing a frivolous lawsuit, had no suit because the lawyer had no duty of care to him, committed no irregular act in filing a frivolous lawsuit against him, and the legal costs, humiliation, interference with work, emotional distress alleged were not sufficient to constitute a special injury. Friedman v Dozorc, 412 Mich. 1, 312 N.W.2d 585, 1981. There are no known exceptions in other states, with many similar lawsuits.

How about the abuse of process claim? The lawyer files a claim with “the intention for which it was designed.” One must prove the claim had 1) an ulterior motive, 2) was an intentional act with an improper purpose. Short of a videotaped confession, these hurdles are impossible, especially between people who did not know each other. In another suit for abuse of process, the lawyer maintained the allegations after knowing they were not true. “...that duty does not give rise to a third party action for abuse of process unless the third party can point to a specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.” Mozzochi v Beck, 529 A.2d 171, 174, Conn., 1987. The Dean of a law school did get a $50 million settlement from a lawyer who publicly bragged, “I'd haul his ass into court and smack him,” on videotape, repeatedly played in court. The money went to another lawyer in a settlement right before verdict. No outsider would have succeeded.

See this article.

Malicious prosecution requires 1) a special injury, not one expected from being prosecuted; 2) absence of probable cause; 3) malice. These are impossible to prove in the real world, in the absence of a taped confession.

There is absolute immunity from defamation for statements in legal proceedings. Lawyers are free to allege false facts, to act outrageously to inflict emotional distress on the opposing party, to negligently misrepresent facts, to invade people’s privacy, and to intentional inflict emotional distress.

In the absence of a statute, it is entirely permissible to perjure oneself in a legal proceeding and to suborn perjury. In New York, the statute permits treble damages from a lawyer guilty of “deceit or collusion with intent to deceive the court or any party.” NY Jud Law § 487. No such statute exists in Pennsylvania.

The philosophy is that the judge should regulate the proceeding and not torts. The lawyer claims that torts is one of the best ways to regulate an enterprise.

One element to proving legal malpractice is the existence of a duty of the tortfeasor to the injured victim. (1) The lawyer believes that he has no duty to the adverse third party. The law is otherwise, as sampled below, from statute and established case law. If a lawyer carelessly violates a rule or regulation meant to protect the plaintiff or is intended to prevent the harm suffered, that violation is called negligence per se. (2) The specifics are less important than 1) their definite enumeration in writing, in clear language, in the law; 2) their great number, far from exhausted by this list. All came from ordinary references. None is original.

Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Conduct

(From, Rotunda, RD. Professional Responsibility. West. St. Paul, MN, 2004. Pp. 251-279.)

Rule 3.1. Lawyers may not assert frivolous positions, claims, defenses, or motions. Dilatory tactics are prohibited, even in criminal cases. The lawyer may not delay merely to harass or injure another. If representation has no reasonable basis or chance of support from future discovery, or is for an improper motive, it is subject to disciplinary action.

Rule 3.3 (a). The lawyer cannot “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Rule 3.4 (a) and (d). Frivolous discovery requests prohibited. Duty of diligent compliance with proper discovery request.

Rule 3.4 (f). The lawyer may not assert personal knowledge of any fact, nor express an opinion about the justness of the claim.

Rule 3,5. This rule forbids ex parte (out of court) communication in the absence of lawyer for the other side to rebut any claim or to argue against any request.

Rule 3,5 (b). Forbids ex parte communication through the clerk of the judge.

The lawyer must reveal his client’s name. Attorney-client privilege does not cover identity of client.

The lawyer may not assist (act in concert, as an agent) the client to violate the criminal law, nor intentionally violate a civil obligation (except breach a contract or make a good faith claim to property). The lawyer has to withdraw if knows facts indicating such violations. The lawyer may not aid such client conduct by encouraging it, advice on reducing its risks, or any act that furthers such law violation. The lawyer may not knowingly assist a tortfeasor in the tortious act.

Candor Toward the Court. No false statement of fact nor of law to the court. Rule 3.3 (a)(2). Must disclose pertinent opposing legal authority in the jurisdiction, then argue against them on behalf of client. Would the judge feel fooled if the lawyer said he knew of no opposing authority? This is true even if finding opposing law or fact would be covered by attorney work product privilege.

Cannot have a claim with a “misrepresentation knowingly made, or made with reckless ignorance of truth or falsity of representation.” Rules of Prof. Conduct, Rule 8.4(c).

Unprofessional conduct will be sanctioned. Thomas v Tenneco Packaging Co., 293 F.3d 1306 (11th Cir. 2002). Insulting remarks about opposing counsel. Comments calling into question the fitness of opposing counsel. Threats. Discriminatory slurs. Impugning the character of opposing counsel.

Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Evidence and Evidence Case Law

(From, Rothstein, PF, Raeder, MS, Crump, D: Evidence, State and Federal Rules. West, St. Paul, MN, 1997.)

Lawyer should not weep. (Ferguson v Moore, Tenn. 1897; People v McGrane NY App. Div, 1960)

Per diem argument impermissible. How much would the members of the jury want to undergo the pain and suffering of the plaintiff for one day, and multiple by the expected duration.

May not liken any party to famous hero or villain.

Cannot include in any opening or closing argument, any statement not supported by the evidence, or distorting applicable law.

May not imply he knows something the jury does not when attacking the credibility of a witness.

May not urge jury to disregard facts or the law.

May not use “golden rule argument” (do unto others as you would have them do onto you). Jury has duty to base verdict on evidence and law.

Outside of opening and closing statements, lawyer may not address the jury.

May not use evidentiary objections to communicate with the witness or jury, nor to fluster the witness, not to break the impact of the opponent. (Speaking objections.)

Should not object during opening and closing statements of other side.

May not introduce evidence of insurance coverage.

May not spring surprise evidence without advance warning in the course of discovery.

May not offer evidence not worth the time to receive it.

Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Civil Procedure

Rule 11. Every pleading, motion or case document must be signed by an individual lawyer, that the lawyer has read it, that it was formed after reasonable inquiry, that it is well grounded in fact, that it is warranted by existing law or good faith argument to extend, modify, or reverse existing law. The signature certifies that the filing has no improper purpose. The court may punish the party or the attorney for a violation. This great rule was amended after an uproar by filers of improper documents to permit a 21 day take backsies. The permissible sanctions include a presumption against the document’s assertion, the payment of the other side’s legal fees resulting from the frivolous motion.

Cannot file a claim with a legal theory that is overly imaginative (“... beyond the bounds of acceptable zealous advocacy.”). In Re Jafree (1982) 93 Ill 2d 450, 67 Ill Dec 104, 444 NE2d 143.

Lawyer Duties to the Adverse Third Party Expressly Enumerated in the Rules of Criminal Procedure

May not directly nor indirectly adversely comment on defendant’s invocation of the Fifth Amendment privilege to not testify.

May not argue there is reasonable doubt in statement to jury.

May not tell jury, defendant intends the ordinary consequences of an act.

If the error rate of a laboratory test is 1 in 100, one may not say, the sample could not match more than 1 in a million people in the local population.

The product rule forbids multiplying probabilities of events that correlate anyway (odds of man with mustache and a beard).


1. Duty today is to those whose relationship is to benefit the plaintiff. It covers knowledge, skill, prudence, diligence. Next, we need causation of the injury, without a foreseeable intervening cause. Harm can be economic, but for the lawyer’s failure. The plaintiff must show, he would have won the original trial. He must show, he could have collected from the defendant had he won the case. The lawyer has “judgmental immunity” if the law is uncertain.

2. Luban, D. Ethics and Malpractice, 12 Miss. Coll. L. Rev. 151 (1991).