Saturday, July 2, 2022

Words And Deeds Protected By Litigation Privilege

The Massachusetts Supreme Judicial Court applied the litigation privilege to protect an attorney sued for his representation of a divorce client

This case concerns the scope of the litigation privilege, which precludes civil liability based on communications made by a party, witness, or attorney in connection with judicial proceedings or contemplated litigation.

In particular, we are asked to determine whether the protection afforded by the litigation privilege applies where the statements at issue are fraudulent misrepresentations, and also whether the litigation privilege extends to actions taken during the course of litigation, or whether it is limited to written and oral statements.

The plaintiffs seek to hold the defendant attorney liable for his conduct while representing a client in divorce proceedings, and for purported fraudulent misrepresentations he made to the court during the divorce trial that formed the basis for the trial judge's disposition of the marital estate to the defendant's client, the wife, thereby preventing the husband's creditors from attaching any of the marital assets. We conclude that the litigation privilege applies in these circumstances, and therefore affirm the allowance of the defendant attorney's motion to dismiss the plaintiffs' complaint.

Plaintiffs were creditors of the divorcing couple who got stiffed

The crux of the complaint is that Flores "orchestrated the scheme," resulting in all of the marital assets being transferred to Kimberly through a judgment of divorce that William's creditors could not challenge. The plaintiffs emphasize that William cooperated with the scheme by appearing pro se during the trial, introducing no evidence with respect to his substantial financial contributions to the marriage, and acknowledging his agreement with the award of the entirety of the marital estate to Kimberly. The plaintiffs also argue that Flores fraudulently misrepresented to the judge that William had dissipated a significant amount of the marital assets, which provided the basis for the judge's order awarding all remaining assets to Kimberly.

A litigation privilege primer

The roots of the litigation privilege can be found in English common law, with the first reported decision dismissing an action against an attorney on the ground of the privilege issued in 1606.

Malicious defamatory statements are protected

The same rationale applies where an attorney is accused of making fraudulent misrepresentations in the course of representing a client. If the protection of the litigation privilege was not in effect where an attorney knowingly misrepresented material facts, at the client's behest, during the course of litigation, the fear of civil liability could  limit the attorney's ability to function as a zealous advocate for his or her client.

The privilege shields actions as well as words

we also must determine whether the litigation privilege extends beyond communications made during the course of judicial proceedings to actions taken by the attorney. As stated, the plaintiffs seek to hold Flores liable not only for his alleged misrepresentations during the course of the divorce proceeding, but also for his conduct in "orchestrating" the purported scheme to defraud them, which they contend went beyond communications and had the effect of taking actions. This purported conduct apparently included scheduling a trial in the divorce case and submitting proposed findings of fact to the court.

Although this issue may be a question of first impression in Massachusetts, as noted supra, multiple State supreme courts have held that the litigation privilege shields an attorney from liability for actions taken during the course of litigation.

There are other remedies for lying lawyers

a determination that an attorney is immune from civil liability for making fraudulent misrepresentations about material aspects of a client's case, or for engaging in misconduct, would not shield the attorney from any applicable sanction for conduct contrary to the rules of professional responsibility, nor would it suggest to other attorneys that such behavior is acceptable.

(Mike Frisch)

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