| D.C. Offutt, Jr.
OFFUTT, FISHER & NORD
Huntington, West Virginia
Jack H. Vital, III
LOCKWOOD AND VITAL
Huntington, West Virginia
Attorneys for Carolyn Clark, M.D.
| James S. Varner, Sr.
James N. Riley
McNEER, HIGHLAND, McMUNN, & VARNER
Clarksburg, West Virginia
Attorneys for Richard Lindsay and Tabor Lindsay & Associates, a West Virginia Partnership
| Stephen B. Farmer
Christopher S. Arnold
Stacy A. Jacques
FARMER, CLINE & CAMPBELL, PLLC
Charleston, West Virginia
Attorneys for William S. Druckman and Salsbery & Druckman, a West Virginia Partnership
| Richard W. Stuhr
COLOMBO & STUHR, CO., L.P.A.
Timothy R. Linkous
COLOMO & STUHR, P.L.L.C.
Morganton, West Virginia
Attorneys for Amicus Curiae Debra Sams, D.O.
This matter is presented to us upon certified questions presented by the Circuit Court of Cabell County pursuant to W. Va. Code § 58-5-2 (1998). (See footnote 1) The underlying tort action arises from claims asserted by a physician against the attorneys who brought a medical malpractice action against the physician on behalf of a former patient of the physician. The certified questions presented relate to the duty of care, if any, an opposing counsel owes a party and the scope of the litigation privilege in West Virginia. Having determined that there is a sufficiently precise and undisputed factual record on which the legal issues can be determined and that those issues substantially control the case, we will address the issues presented. Syl. Pt. 5, in part, Bass v. Coletelli, 192 W. Va. 516, 453 S.E.2d 350 (1994).
Court holds each and every attorney to the inflexible requirement that he 'diligently,
faithfully and legitimately perform every act necessary to protect, conserve
and advance the interests of his client.' Bank of Mill Creek v. Elk Horn Coal
Corp., 133 W. Va. 639, 657, 57 S.E.2d 736, 748 (1950). An attorney who
deviates from this duty is subject to disciplinary action, see Rules of Professional
Conduct, and/or civil liability, the latter of which may be pursued only
by the client injured by his counsel's negligence.
Delaware CWC Liquidation Corp. v. Martin, 213 W. Va. 617, 623, 584 S.E.2d 473, 479 (2003) (refusing to permit the assignment of a legal malpractice claim)(emphasis added). See also Norton v. Hines, 49 Cal.App.3d 917, 922 (Cal. Ct. App. 1975) (noting an attorney's duty is to his client to vigorously pursue the client's case within the bounds of law and the rules of professional conduct). Similarly, the court in McKenna Long & Aldridge, LLP v. Keller, 598 S.E.2d 892, 894 (Ga. Ct. App. 2004), reviewing a number of Georgia cases discussing duty in the context of attorneys' relationships with non-clients, noted that:
[a] defendant attorney owe[s] no duty to the plaintiff . . . the attorney's paramount duty [is] to the trial court, as a licensed attorney and officer of the court, and to his client[.] . . . [N]o cause of action in negligence [can] lie because the overriding public policy guarding free access to the courts and the fact that the attorney's legal duty is to his own client demand[s] a finding that the attorney owe[s] no duty to an adverse party that would give rise to a claim in negligence, whether to investigate fully the client's claim prior to filing suit or to avoid filing a suit which he knew or should have known was frivolous.
(Internal quotations and citations omitted). An attorney's general duty to
the judicial system does not translate into liability in negligence to an opposing
party. Tappen v. Ager, 599 F.2d 376, 379 (10th Cir. 1979); Bickel
v. Mackie, 447 F.Supp 1376, 1381 (N.D. Iowa 1978).
Dr. Clark has not cited a single decision from any court in the United States which supports her position and our own research has not uncovered such a decision. To the contrary, courts which have addressed the issue have uniformly found that an attorney does not have a duty to a third party, including an opposing party, the breach of which would subject the attorney to liability. See, e.g., Tappen, 599 F.2d at 379; James v. Chase Manhattan Bank, 173 F.Supp.2d 544, 550 (N.D. Miss. 2001); Taco Bell Corp. v. Cracken, 939 F.Supp. 528, 532 (N.D. Texas 1996); Bickel, 447 F.Supp at 1381; Norton, 49 Cal.App.3d at 922; Krawxzyk v. Stingel, 543 A.2d 733, 735 (Conn. 1988); McKenna, 598 S.E.2d at 894; Brody v. Ruby, 267 N.W.2d 902, 906-7 (Iowa 1978); Friedman v. Dozorc, 312 N.W.2d 585, 591-2 (Mich. 1981); Eustis v. David Agency, Inc., 417 N.W.2d 95, 298 (Minn. Ct. App. 1987); Rhode v. Adams, 957 P.2d 1124, 1127-28 (Mont. 1998); Garcia v. Rodey, Dickason, Sloan, Akin & Robb, PA, 750 P.2d 118, 122 (N.M. 1988); Aetna Electroplating Co. v. Jenkins, 484 A.2d 134, 136-7 (Pa. Super. 1984); Bradt v. West, 892 S.W.2d 56, 71-2 (Tex. Ct. App. 1994). As aptly stated by the Michigan Supreme Court in Friedman, the
of a duty in favor of an adversary of the attorney's client would create an unacceptable
conflict of interest which would seriously hamper an attorney's effectiveness
as counsel for his client. Not only would the adversary's interests interfere
with the client's interests, the attorney's justifiable concern with being sued for negligence would detrimentally interfere with the attorney-client relationship.
Freidman, 312 N.W.2d at 591-2 (footnotes omitted).
This Court can find no justification for imposing a duty of care in favor of an opposing party upon counsel. Imposition of such a duty can only work to the detriment of counsel's own client and would adversely impact counsel's duty of zealous advocacy for his or her own client and would create an impossible and unjustified conflict of interest. Accordingly, we hold that an attorney for a party in a civil lawsuit does not owe a duty of care to that party's adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney.
public policies associated with the litigation privilege include: (1) promoting
the candid, objective and undistorted disclosure of evidence; (2) placing the
burden of testing the evidence upon the litigants during trial; (3) avoiding
the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing
the finality of judgments; (5) limiting collateral attacks upon judgments; (6)
promoting zealous advocacy; (7) discouraging abusive litigation practices; and
(8) encouraging settlement. Matsuura v. E.I. du Pont de Nemours & Co., 102
Hawai'i 149, 73 P.3d 687, 693 (2003).
Barefield, 215 W. Va. at 560, 600 S.E.2d at 272 (Davis, J., concurring). In light of these policies, we see no reason to distinguish between communications made during the litigation process and conduct occurring during the litigation process. As recognized by the Florida Supreme Court:
immunity must be afforded to any act occurring during the course of a judicial
proceeding, regardless of whether the act involves a defamatory statement or
other tortious behavior such as the alleged misconduct at issue, so long as the
act has some relation to the proceeding. The rationale behind the immunity afforded
to defamatory statements is equally applicable to other misconduct occurring
during the course of a judicial proceeding. Just as participants in litigation
must be free to engage in unhindered communication, so too must those participants
be free to use their best judgment in prosecuting or defending a lawsuit without
fear of having to defend their actions in a subsequent civil action for misconduct.
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., v. United States Fire Insurance Company, 639 So.2d 606, 608 (Fla. 1994). See also Jackson v. Bellsouth Telecommunications, 372 F.3d 1250, 1274 (11th Cir. 2004) (quoting Levin).
In Collins, we recognized that absolute privileges, such as the litigation privilege, should only be permitted in limited circumstances. Collins, 211 W. Va. at 461, 566 S.E.2d at 598. Thus, we do not believe that a litigation privilege should apply to bar liability of an attorney in all circumstances. In Mehaffey, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 982 P.2d. 230, 235 (Colo. 1995), the Colorado Supreme court noted that an attorney is not liable to a non-client absent a finding of fraud or malicious conduct by the attorney. See also Baglini v. Lauletta, 768 A.2d 825, 833-34 (2001) (The one tort excepted from the reach of the litigation privilege is malicious prosecution, or malicious use of process.). We believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney's duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party. As recently noted by a California court:
fraud claim against a lawyer is no different from a fraud claim against anyone
else. If an attorney commits actual fraud in his dealings with a third party,
the fact he did so in the capacity of attorney for a client does not relieve
him of liability. While an attorney's professional duty of care extends only
to his own client and intended beneficiaries of his legal work, the limitations
on liability for negligence do not apply to liability for fraud.
Vega v. Jones, Day, Reavis & Pogue, 121 Cal.App.4th 282, 291, 17 Cal.Rptr.3d 26, 31-2 (Cal. Ct. App. 2004)(internal citations and quotations omitted).
In order [t]o maintain an action for malicious prosecution it is essential to prove: (1) That the prosecution was malicious; (2) that it was without reasonable or probable cause; and (3) that it terminated favorably to plaintiff. Syl. Pt. 1, Lyons v. Davy-Pocahontas Coal Co., 75 W. Va. 739, 84 S.E. 744 (1915). The term malicious is defined as [s]ubstantially certain to cause injury and without just cause or excuse. Black's Law Dictionary 977 (8th Ed. 2004). This definition implies an improper or evil intent or motive or the intent to do harm. Where an attorney files suit without reasonable or probable cause with the intent to harm a defendant, we do not believe the litigation privilege should insulate him or her from liability for malicious prosecution.
As noted above, we can find no reasonable justification for distinguishing conduct from communications for the purposes of the litigation privilege. However, we also recognize the need for limited exceptions from application of the absolute litigation privilege for certain intentional actions. Accordingly, we now hold that the litigation privilege is generally applicable to bar a civil litigant's claim for civil damages against an opposing party's attorney if the alleged act of the attorney occurs in the course of the attorney's representation of an opposing party and is conduct related to the civil action. (See footnote 9)
The second question certified to this Court did not provide for the above recognized exceptions to the litigation privilege. Therefore, we invoke the power recognized in Syllabus Point 3 of Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993), to reformulate the question certified so as to fully address the issues presented and reformulate the question presented to read:
a party to a civil action barred, by virtue of the litigation privilege, from
bringing claims for civil damages against the opposing party's attorney if the
alleged act of the attorney in the course of the attorney's representation of
the opposing party is conduct and not a written or oral statement which arose
in the civil action and which has some
relationship to the civil action?
Thus, we likewise find the circuit court's answer to the second question certified was substantially correct.
Our ruling today does not permit attorneys or their clients to act without consequence during the litigation process. However, we believe our Rules of Civil Procedure, our Rules of Professional Conduct, and the court's inherent authority provide adequate safeguards to protect against abusive and frivolous litigation tactics.
For example, Rule 11(b) of our Rules of Civil Procedure, provides:
presenting to the court (whether by signing, filing, submitting or later advocating)
a pleading, written motion, or other paper, an attorney or unrepresented party
is certifying that to the best of the person's knowledge, information and belief
formed after an inquiry reasonable under the circumstances, (1) it is not being
presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation; (2) the claims, defenses,
and other legal contentions therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law or the
establishment of new law; . . . .
Rule 11(c) provides for the imposition of sanctions, including, but not limited to, monetary sanctions for violations of Rule 11(b). Rule 37 provides additional sanctions for discovery violations. In the instant matter, Dr. Clark may have been able to move for sanctions relating
to a misrepresentation of expert testimony had Druckman and Lindsay represented that the disclosed experts would testify, as opposed to simply stating that the disclosed experts may be used. However, the record does not indicate that Dr. Clark ever moved for sanctions in the Dempsey action.
Our Rules of Professional Conduct also provide duties governing an attorney's conduct. For example, Rules 3.1 through 3.5 are rules governing an attorney's conduct toward the tribunal, opposing counsel and the opposing party. These rules provide guidelines prohibiting frivolous actions and imposing duties of candor, impartiality and decorum. Where a party or opposing counsel believes an attorney is acting in violation of the Rules of Professional Conduct, disciplinary action may be sought. In the instant action, the record does not reveal that Dr. Clark ever sought disciplinary action against any of the defendant attorneys for their alleged misconduct.
Notwithstanding the availability of sanctions under the Rules of Civil Procedure and the availability of disciplinary action for violations of the Rules of Professional Conduct, a trial court always has inherent authority to regulate and control the proceedings before it and to protect the integrity of the judicial system. As noted by the Florida Supreme Court in Levin:
a trial judge has the inherent power to do those things necessary to enforce
its orders, to conduct its business in a
proper manner, and to protect the court from acts obstructing the administration of justice. In particular, a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt.
Levin, 639 So.2d at 608-9. Where an attorney's misconduct so offends the integrity of the judicial system and a party's right to a fair trial, the trial court has inherent authority to impose corrective sanctions.
Finally, we note that the conduct of which Dr. Clark complains, the filing and prosecution of a medical malpractice action allegedly without supporting expert testimony, has been statutorily remedied. W. Va. Code § 55-7B-6 was amended by the Legislature in 2001 to require, in most instances, the disclosure of relevant expert opinions by the time suit is filed. See footnote 7, supra. Even prior to the 2001 statutory amendments, W. Va. Code § 55-7B-6 (b) (1986), which was in effect at the time the Dempsey action was initiated, provided for the recovery of reasonable litigation expenses incurred if the action was dismissed upon a finding that it was frivolous. (See footnote 10) It appears Dr. Clark did not avail herself of these statutory remedies in the Dempsey matter. Instead, she instituted the instant action against the Dempsey's counsel.