While politicians and, most recently, the mainstream media are quickly ascending the list of the most reviled occupations, attorneys still maintain their prominent position in that group.
The law is a profession that often gets little respect, in part because one unscrupulous act by an attorney tends to overshadow hundreds of noble acts.
Even though the vast majority of attorneys are productive citizens who don’t deserve the stigma attached to our profession, there is a general dislike of attorneys because we are sometimes portrayed as representing the interests of clients without really caring who they are, what they did, what harm they caused or how culpable they are.
Increasingly, clients are demanding that attorneys push the limits of zealous representation.
Short-sighted clients want a pound of flesh through legal machinations intended to frustrate as opposed to seeking justice. Attorneys who assist clients in devising schemes to harm others expose themselves to potential charges of conspiracy and aiding and abetting the client’s wrongful conduct.
“Extreme caution should be exercised when an attempt is made to hold an attorney liable for a wrong committed by his client by way of a civil conspiracy cause of action.”1
An attorney acting under employment, at the direction of his client and in a legal manner, is not liable for the consequences of his client’s actions.
The general rule is that an attorney acting as an agent cannot conspire with his client principal.2 That is because an attorney serves as an agent for his or her client and the attorney’s acts are the acts of the principal, the client.3
An exception is made when the attorney has a personal stake in the activities separate from the client’s interest.4
Also, an attorney may be held liable for his or her fraudulent misrepresentations even if acting on behalf of a disclosed client.
An attorney is liable for conspiring to commit fraud when the attorney prepares documents that facilitate fraud.
For instance, an attorney who prepares an affidavit reflecting no clouds on the title to real estate despite his knowledge of a pending appeal of the foreclosure judgment through which his clients had acquired the real estate can be found liable for conspiracy and subject to punitive damages for such conduct.5
The same is true for aiding and abetting the fraud of a client.
Should attorneys have a qualified immunity in aiding and abetting their clients in civil matters?6
The rationale behind such immunity is that attorneys cannot serve their clients adequately when their own self-interest, such as the need to protect themselves from potential tort claims by third parties, pulls the attorney in the opposite direction.
Perhaps lawyers should not be exposed to liability for aiding and abetting their clients in an intentional tort as a matter of law and public policy unless there are special exceptions.7
The promotion of zealous representation and consideration should be given to an attorney for actions taken in connection with representing a client.8
There is a social benefit of protecting an attorney for proper legal advice, making it appropriate not to hold attorneys liable for activities in the course of proper legal representation.
But what is proper legal representation?
With respect to liability to a nonclient for advising a client, common sense suggests there should be a distinction between an attorney who counsels a client to break a contract that is in the client’s best interest as opposed to an attorney who counsels a client to commit fraud against another.
Should an attorney who helped conceal the sale of his client’s real estate from the client’s former law firm escape liability because he was only implementing creative legal strategies?9
Is it unreasonable for an attorney to be held liable by trust beneficiaries for participating in a conspiracy with the trustee to commit fraud, aiding and abetting fraud and participating in breaches of fiduciary duty and trust?10
Should an attorney be immune from liability when he or she conspires with the plaintiff insurer’s claims agent to reach fraudulently large settlements?11
Those rhetorical questions demonstrate lawyers can cross the line when offering legal advice to demanding clients.
Attorneys must be cautious with clients who ask them to cross over the line of zealous representation to pursue unlawful legal maneuvers that harm others.
Footnotes:
1 See Blatt v. Green, Rose, Kahn& Piotrkowski, 456 So. 2d 949 (Fla. 3d DCA 1984).
2 See H&B Equipment Co., Inc. v. International Harvester, 577 F.2d 239, 244 (5th Cir. 1978).
3 See Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963 (Fla. 4th DCA 2002).
4 See Lipsig v. Ramlawi, 760 So.2d 170, 180 (Fla. 3d DCA 2000).
5 See Gold v. Wolkowitz, 430 So.2d 556 (Fla. 3d DCA), rev. denied, 437 So.2d 677 (Fla.1983).
6 See Reynolds v. Schrock, 142 P.3d 1062 (Or. 2006).
7 Durham v.Guest, 171 P.3d 756, 760 (N.M. Ct. App. 2007).
8 Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App. 2005).
9 Nova. Assignments, Inc. v. Kunian, 928 N.E. 2d 364 (Mass. App. 2010).
10 Stueve Bros. Farms, LLC v. Berger Kahn, 222 Cal. App. 4th 303, 325-26 (2013).
11 Rivet v. State Farm Mut. Auto. Ins. Co., 316 Fed. Appx. 440, 445 (6th Cir.2009).