April 5, 2010
Guest Blogger Alex Long: "Should Tort Law Be Tougher on Lawyers?"
Should Tort Law Be Tougher on Lawyers?
There are plenty of special tort rules that have developed when lawyers are sued in their professional capacity. As my colleague Ben Barton has observed, most of these special rules treat lawyers more favorably than similarly-situated nonlawyers. Examples include the courts’ refusal to recognize the “loss of chance” theory in legal malpractice cases and the recognition of the absolute litigator’s privilege, which some courts have extended beyond the defamation context to shield lawyers from liability under theories ranging from intentional infliction of emotional distress to fraud.
That’s why about a year ago I was surprised to learn about a special form of civil liability for lawyers that is decidedly lawyer unfriendly. In Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009), the
Potentially, that’s a pretty significant decision for lawyers, at least insofar as it subjects lawyers to civil liability for which nonlawyers cannot be held liable. Had the Amalfitano plaintiffs sued the defendant-lawyer’s client on a fraud theory, they probably would have lost since the attempted fraud involved attempting to mislead the court; thus, the attempted fraud was one upon the court, rather than the plaintiffs. Moreover, the plaintiffs probably would have lost on a malicious prosecution or wrongful initiation of civil proceedings claims because
The question I’ve been wrestling with since the decision is whether it’s such a good idea to lower the standard for lawyer liability in cases of deceit occurring while a lawyer is representing a client. On the one hand, much of the tort law governing lawyers is based on the idea that we do not want to deter lawyers’ willingness to engage in diligent representation of their clients for fear of facing civil liability. On the other hand, there is the reality that lawyers have special obligations when it comes to the administration of justice as officers of the court. Ultimately, it strikes me as being a fundamentally different thing for a lawyer – while wearing his or her lawyer hat – to knowingly lie to the court or to intentionally destroy evidence than it is for a nonlawyer to do the same.
But is it different enough to justify imposing liability on the lawyer when the jurisdiction’s tort rules would not allow for liability in the case of a nonlawyer? I tend to think that an appropriate analogy here is to the employment law tort of wrongful or retaliatory discharge in violation of public policy. Why do we provide a remedy for an employee who has been fired for applying for workers compensation benefits or serving on a jury? Sure it’s because we think it’s unfair for the employee to be forced to choose between his or her job and taking advantage of a statutory entitlement or fulfilling a public obligation. But it’s also at least as much because we want to preserve the integrity of the systems and institutions that are adversely affected by the employer’s action. Similarly, while I feel bad for the party that has incurred added expense or heartache as a result of the fact that the other side has lied to the party or the court during a legal proceeding, I’m at least equally concerned about the damage to the integrity of the legal process. I’m less concerned when it’s a party that’s doing the lying because the legal system’s structure is based in part on the recognition that parties may, in fact, lie. We expect it to happen and have measures in place to guard against it. But we shouldn’t have to guard against the lawyers to the proceeding engaging in deceit, particularly where the courts and the legal profession have established a monopoly on the practice of law and have certified the fitness of those who practice it. The courts and the legal profession have, in effect, made an assurance about the integrity of the process. Permitting lawyers to damage that integrity creates the kind of public or third-party harm that, to my mind, justifies a remedy.
Of course, that conclusion still leaves open a host of other issues, including whether it also makes sense to criminalize attorney deceit (as the majority of these statutes do) and how to define the concept of “deceit” as applied to attorneys. But in light of the damage that attorney deceit occurring during the course of a legal proceeding causes to the other party, the integrity of the legal process, and the reputation of the legal profession, I think that it generally makes sense for tort law to be tougher on attorney deceit than other types of deceit.
--Alex B. Long
University of Tennessee College of Law
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Members of the list may like to know that here in England we've been seriously at this game for about 20 years, and that we're a good deal tougher on the attorneys. Our civil procedure law (Supreme Court Act 1981, s.51, expanding the previous common law) makes an attorney potentially liable to the other side for any “improper, unreasonable, or negligent act or omission”. No multiple damages (liability is simply for the other guy's attorney fees wasted as a result), but it goes well beyond fraud. In the past we've mulcted lawyers for swearing false affidavits, production line appeals with no chance of success, running hopeless applications to delay inevitable eviction or tax, failing to show up at all, sending an unprepared paralegal to a hearing, and carelessly screwing up on the parties to be sued.
If anyone's interested, I'll be happy to give details offlist.
Posted by: andrew tettenborn | Apr 12, 2010 9:03:55 AM