The Connecticut Supreme Court has recently ruled that lawyers cannot be sued for fraudulent conduct in court cases; a ruling that was based upon an age old doctrine. The 5-1 decision last week came about in the case of Bob Simms who was trying to sue his ex-wife Donna and her lawyers alleging a failure to disclose a $360,000 inheritance Donna received in 2006 and 2008. The couple had previously been battling in court over the amount of alimony Simms was paying his ex-wife.

Immunity in Fraud Lawsuits

At the trial court level, Bob Simms was ruled against and he chose to appeal. On May 10th the Justices found that lawyers are shielded and have absolute immunity in fraud lawsuits, apparently a legal doctrine that dates back to medieval England. Apparently the original rule was meant to promote free speech in court proceedings without the fear of future lawsuits, as well as to promote attorney advocacy for clients.

"The mere possibility of such (fraud) claims, which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients," Justice Peter Zarella wrote in the majority opinion.

Dissent Worries Non-lawyers will View Decision as Unduly Protectionist

There were several decisions cited by the Court which recognized immunity to government attorneys, and the Justices apparently believe that the same should be extended to all attorneys. Well not all of the justices…Justice Richard Palmer in his dissent said that his colleagues' decision was not in line with the majority of the law and ignored the strong presumption against immunity. "The majority's decision rightly will be viewed — by non-lawyers especially — as unduly protectionist of attorneys," Palmer wrote.

This is certainly an interesting perspective on the practice of law. Where the promotion of zealous advocacy for clients is at the forefront of most attorneys’ agendas, have we forgotten about that little thing called ethics? Perhaps this ruling is fact specific and won’t necessarily apply across the board. To give absolute immunity to all attorneys seems to be a slippery slope toward ethics violations.

 

 

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