Attorney Immune From Opposing Party’s Statutory Theft Claim

The Connecticut Appellate Court affirmed the dismissal of a claim against an attorney on litigation privilege immunity grounds. 

This appeal concerns an issue of first impression in Connecticut: whether an attorney is protected by absolute immunity under the litigation privilege from a claim of statutory theft arising from the attorney’s conduct during prior judicial proceedings.

The plaintiff appealed the dismissal of the action by the trial court.

Plaintiff was the subject of a foreclosure

Benchmark is a client of the defendant, who is an attorney licensed to practice law in the state of Connecticut. Pursuant to a writ of summons and complaint dated April 22, 2016, the defendant, acting as Benchmark’s attorney, commenced a civil action against the plaintiff to foreclose the lien…

On November 9, 2016, the defendant filed a motion to default the plaintiff for failure to appear in the foreclosure action, which was granted, and, on December 2, 2016, the defendant filed a motion for a judgment of strict foreclosure. According to the complaint, the defendant sought a judgment of strict foreclosure, rather than a foreclosure by sale, by misleading ‘‘the court to believe that [the plaintiff’s] equity in the property was tens of thousands of dollars less than it truly was by procuring and filing with the court an appraisal report . . . [that] was flawed on its face . . . .’’ The court granted the motion for a judgment of strict foreclosure on January 9, 2017.

The court here explored the history of the litigation privilege in Connecticut

In the present case, we must decide whether a cause of action for statutory theft may be brought against an attorney arising out of actions taken by the attorney during judicial proceedings. A determination of this issue, therefore, requires this court to evaluate the competing public policy considerations, including the underlying purpose of judicial proceedings, the similarity between statutory theft and claims of fraud and defamation, which are protected by the privilege, and the availability of other remedies.

…there is no basis for precluding the application of absolute immunity to a statutory theft claim that does not challenge the underlying purpose of the litigation but, instead, challenges the alleged misconduct of the defendant in his role as an attorney on behalf of his client.

Here the privilege applies

The statutory theft claim in the present case falls squarely within that analysis. The plaintiff essentially alleges that the defendant’s false communications to the court in the foreclosure action led to the theft of his property. Because the privilege protects the defendant’s communications, they are shielded by absolute immunity, regardless of the nature of the plaintiff’s cause of action.

Policy favors immunity

The allegations in the present case similarly involve open questions on which opinions could differ. We conclude that public policy does not support permitting claims of statutory theft against attorneys, as it would inhibit participation and candor in judicial proceedings, as well as ‘‘have a chilling effect on the attorney-client relationship and on an attorney’s zealous representation of his or her client.’

Other remedies

attorneys who engage in serious misconduct, such as the misconduct alleged by the plaintiff here, are subject to a number of possible sanctions, including disbarment. The availability of these remedies serves as a deterrent to attorney misconduct with respect to a claim of statutory theft as equally as it does with respect to a claim of fraud.

Conclusion

In summary, statutory theft is clearly distinguishable from claims of vexatious litigation and abuse of process, to which the litigation privilege does not apply, as the plaintiff’s claim of statutory theft against the defendant attorney for conduct that occurred during a judicial proceeding does not challenge the underlying purpose of the litigation but, rather, concerns the defendant’s role as an advocate for his client.

…we conclude that statutory theft is more akin to claims of fraud and defamation, to which the litigation privilege applies, and, thus, the underlying purpose of absolute immunity applies equally to statutory theft as it does to claims of defamation or fraud. Our determination that the litigation privilege protects the defendant from the plaintiff’s claim of statutory theft also furthers the public policy underlying absolute immunity of encouraging participation and candor in judicial proceedings, while at the same time limiting the exposure of attorneys to harassing and expensive litigation, which would likely inhibit their freedom in making good faith evidentiary decisions and representations, and have a negative effect on their ability to advocate zealously for their clients.

(Mike Frisch)