Suing Opposing Counsel
The Kentucky Supreme Court reinstated a circuit court opinion in a matter where the plaintiff had sued opposing counsel
RLB Properties, Ltd. filed a complaint against the law firm of Seiller Waterman, LLC and three of its attorneys based upon their allegedly wrongful acts undertaken on behalf of the firm’s clients, Skyshield Roof and Restoration, LLC and Jacob Blanton. The challenged actions included the filing of an invalid materialman’s and mechanic’s lien against commercial property owned by RLB Properties and the subsequent filing of a third-party complaint against RLB Properties. RLB Properties’ complaint against Seiller Waterman alleged wrongful use of civil proceedings and abuse of civil process; civil conspiracy; slander of title; violation of KRS 434.155 by filing an illegal lien; negligence; and negligent supervision. The Jefferson Circuit Court dismissed all of these claims either for failure to state a claim upon which relief can be granted or for failure to file timely under the applicable statute of limitations. The Court of Appeals affirmed the dismissals, except for the slander of title, civil conspiracy, and KRS 434.155 violation claims, finding that KRS 413.245 would not time bar the claims if malice were proven.
On discretionary review, we affirm in part and reverse in part. We affirm the Court of Appeals’ decision that a professional negligence action may not be brought against an attorney by a party who is neither the client nor an intended third-party beneficiary of the attorney’s work. We further affirm that when pleading wrongful use of civil proceedings against an attorney or law firm, neither earning attorney fees nor filing a claim seeking damages on behalf of a client is an improper purpose allegation sufficient to survive a motion to dismiss. Finally, we reverse the Court of Appeals’ decision that KRS 413.245, the one-year statute of limitations applicable to the rendering of professional services, does not apply to claims against attorneys when malice is alleged.
Suing opposing counsel
we agree with the philosophy represented in the Restatement (Second) of Torts and the Restatement (Third) of the Law Governing Lawyers that an attorney seeking to collect an attorney fee in the usual course of representing a client is not acting for an improper purpose, a necessary element of the wrongful use of civil proceedings claim. Even if the attorney acts without probable cause to believe the client’s claim will succeed, the improper purpose which may subject an attorney to liability to a nonclient must be something other than simply earning a fee.
..neither the desire to earn attorney fees nor the filing of a claim seeking damages on behalf of a client constitutes an improper purpose sufficient to sustain a WUCP action against an attorney who represented a former adversary. Additionally, the record in this case contains no factual allegations to support the claim that Seiller Waterman was “extorting money” in some fashion beyond filing what was eventually established as a meritless claim against RLB. Under these circumstances, the trial court properly concluded that RLB’s complaint did not allege any facts, which when taken as true under our CR 12.02 standard, would be sufficient to establish the improper purpose element of a wrongful use of civil proceedings claim. Consequently, the trial court did not err when it dismissed RLB’s WUCP claim for failure to state a claim upon which relief can be granted, and the Court of Appeals properly affirmed on that issue.
Negligence claim
Because Kentucky law does not recognize a negligence action against the attorney for a prior adversary in litigation, the trial court properly dismissed RLB’s negligence claim against Seiller Waterman. Accordingly, we affirm the Court of Appeals on this issue as well.
The remaining claims were time barred . (Mike Frisch)