St. John's Law Review Volume 53 Number 4 Volume 53, Summer 1979, Number 4 Article 5 Attorney's Liability to Client's Adversaries for Instituting Frivolous Lawsuits: A Reassertion of Old Values John H. Beers Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ATTORNEYS' LIABILITY TO CLIENTS' ADVERSARIES FOR INSTITUTING FRIVOLOUS LAWSUITS: A REASSERTION OF OLD VALUES INTRODUCTION Rapid expansion of liability' and a concomitant rise in the aver- age damage award have characterized recent tort litigation, espe- cially in the area of medical malpractice.2 As plaintiffs have been enriched by this development, so too have their attorneys, who fre- quently are compensated for their services under contingent fee ar- rangements. 3 The potential for considerable financial gain may ac- count for an increased number of apparently frivolous lawsuits,' which is evidenced by the growing number of situations where de- fendants subjected to baseless actions have brought countersuits against their adversaries' attorneys.- Yet, whether brought under traditional or novel tort theories, such countersuits generally have been unsuccessful. This Note will explore the desirability of holding attorneys lia- ble in tort to their clients' adversaries where frivolous lawsuits have been conducted.8 To this end, the theories upon which plaintiffs in I See W. PROSSER, HANDBOOK OF THE LAW OF TORTS xi (4th ed. 1971). For a discussion of the expansion in liability under the doctrine of res ipsa loquitur, see Adamson, Medical Malpractice:Misuse of Res Ipsa Loquitur, 46 MINN. L. REv. 1043 (1962). 1 See, e.g., NEWSWEEK, June 9, 1975, at 59; Adler, Malicious ProsecutionSuits as Coun- terbalance to Medical Malpractice Suits, 21 CLEv. ST. L. REv. 51, 51-53 (1972); Project, The Medical Malpractice Threat: A Study of Defensive Medicine, 1971 DUKE L.J. 939, 940-42 & n.4. 3 See Note, Rx for New York's Medical Malpractice Crisis, 11 COLUM. J.L. & SOC. PROB. 467, 479-80 & n.79 (1975). ' See Birnbaum, Physicians Counterattack:Liability of Lawyers forInstituting Unjusti- fied Medical Malpractice Actions, 45 FonRHAm L. REv. 1003, 1008-14 (1977). 1 See cases cited in note 10 infra. See also Lawyers and Doctors Unite to Fight 'Nuisance' Suits, N.Y. Times, Aug. 12, 1979, at 20, col. 6. 1 See generally Birnbaum, supra note 4; Tell, Doctors Find No Cure in Countersuits, Nat'l L.J., Feb. 12, 1979, at 1, col. 4; Note, Malicious Prosecution:An Effective Attack on Spurious Medical Malpractice Claims?, 26 CASE W. RES. L. REv. 653 (1976); Comment, Attorney Liability for Malicious Prosecution and Legal Malpractice:Do They Overlap?, 8 PAc. L.J. 897 (1977); Note, Physician Countersuits:Malicious Prosecution,Defamation and Abuse of Process as Remedies for Meritless Medical Malpractice Suits, 45 U. CIN. L. REv. 604 (1976); Comment, Counterclaiming for Malicious Prosecution and Abuse of Process: Washington's Response to Unmeritorious Civil Suits, 14 WuA~mr= L.J. 401 (1978). While most countersuits against attorneys have followed medical malpractice actions, the views expressed in this Note are intended to apply to all lawsuits alleged to be frivolous. ST. JOHN'S LAW REVIEW [Vol. 53:775 countersuits commonly rely will be examined,7 followed by an anal- ysis of the factors militating against and in favor of holding attor- neys liable.8 The Note will conclude by proposing an alternative standard for imposing civil liability upon attorneys who institute baseless suits.' THEORIES OF LIABIrry Malicious Prosecution The theory most frequently relied upon by plaintiffs seeking recovery from attorneys for instituting frivolous lawsuits against them is malicious prosecution.'" To succeed, an individual must prove that there was a prior action instituted by the defendant, an absence of probable cause to believe in the validity of the underlying claim, malice on the part of the defendant, termination of the law- suit in the plaintiff's favor and injury." While these proof require- See notes 10-100 and accompanying text infra. See notes 103-139 and accompanying text infra. See notes 141-155 and accompanying text infra. 10 For examples of countersuits brought on the theory of malicious prosecution, see Car- roll v. Kalar, 112 Ariz. 595, 545 P.2d 411 (1976); Norton v. Hines, 49 Cal. App. 3d 917, 123 Cal. Rptr. 237 (1975); Tool Research & Eng'r Corp. v. Henigson, 46 Cal. App. 3d 675, 120 Cal. Rptr. 291 (1975); Berlin v. Nathan, 64 Ill. App. 3d 940, 381 N.E.2d 1367 (1978); Spencer v. Burglass, 337 So. 2d 596 (La. Ct. App. 1976), cert. denied, 340 So. 2d 990 (1977); Friedman v. Dozorc, 80 Mich. App. 429, 268 N.W.2d 673 (1978); O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977) (en banc) In most cases, malicious prosecution is not the only theory upon which relief is sought. See, e.g., Bickel v. Mackie, 447 F. Supp. 1376 (N.D. Iowa), aff'd mem., 590 F.2d 341 (8th Cir. 1978) (abuse of process, negligence, conspiracy and malicious prosecu- tion). " See, e.g., Lyddon v. Shaw, 372 N.E.2d 685, 687 (Ill. App. 1978); W. PROSSER, supra note 1, § 120. The Second Restatement of Torts, which has labelled malicious prosecution "Wrongful Use of Civil Proceedings," defines the tort as follows: One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and (b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought. RESTATEMENT (SECOND) OF TORTS § 674 (1977). While the basic elements of this tort appear to be consistent throughout American jurisdictions, neither the Illinois nor the Restatement definition has been adopted universally; the elements are stated differently in various juris- dictions. See, e.g., Bickel v. Mackie, 447 F. Supp. 1376, 1379 (N.D. Iowa), aff'd mem., 590 F.2d 341 (8th Cir. 1978); Tool Research & Eng'r Corp. v. Henigson, 46 Cal. App. 3d 675, 682, 120 Cal. Rptr. 291, 296 (1975). See generally 1 T. COOLEY, A TREATISE ON THE LAW OF TORTS 319-53 (3d ed. 1906); 3 J. DOOLEY, MODERN TORT LAW: LiABiLrrY & Litigation §§ 41.02-.08 (1977 & Supp. 1978); 1 F. HARPER & F. JAMES, JR., THE LAW OF TORTS § 4.8 (1956); R. MALLEN & V. Levit, Legal Malpractice § 45 (1977 & Supp. 1979); W. PROSSER, supra note 1, § 120. 1979] ATTORNEYS' LIABILITY ments apparently exist in all jurisdictions, they have received diver- gent judicial interpretation. Although the "lack of probable cause" requirement1" clearly is not satisfied merely by proving that the earlier suit terminated fa- vorable to the plaintiff, 3 it is not necessary for the plaintiff to prove that the defendant's attorney knew that probable cause did not exist. As the Second Restatement of Torts states, an individual has probable cause to institute an action if he "correctly or reasonably believes that under those facts the claim may be valid under the applicable law. ...4Consistent with this definition, courts have held that a lack of probable cause may be found where no reasonable attorney would believe a particular claim to be tenable. This rule nevertheless affords an attorney considerable latitude," since it per- mits him to advocate a doubtful legal position.17 It is likely, there- The tort of malicious prosecution is said to have developed as the result of an attempt to balance two competing social interests: The first is the interest of society in the efficient enforcement of the. law, which requires that private persons who aid in the enforcement of the law should be given an effective protection against the prejudice which is likely to arise from the termi- nation of the prosecution in favor of the accused. The second is the interest which the individual citizen has in being protected against unjustifiable and oppressive litigation of criminal charges, which not only involve pecuniary loss but also distress and loss of reputation. RESTATEMENT OF TORTS ch. 29, introductory note, at 380 (1938); accord, Crim v. Crim, 101 So. 2d 845, 848 (Ala. App. 1958); Wilson v. Yono, 65 Mich. App. 441, 443, 237 N.W.2d 494, 496 (1975). This principle also has been expressed in malicious prosecution actions based upon prior civil proceedings. See Norton v. Hines, 49 Cal. App. 3d 917, 922, 123 Cal. Rptr. 237, 240 (1975). 12See, e.g., Stewart v. Sonneborn, 98 U.S. 187, 194 (1878); Wilcox v. Gilmore, 320 Mo. 980, 986, 8 S.W.2d 961, 962 (1928); Baird v. Intermountain School Fed. Credit Union, 555 P.2d 877, 878 (Utah 1976); 1 T. COOLEY, supra note 11, at 321-28; 3 J. DOOLEY, supra note 11, § 41.07; 1 F. HARPER & F. JAMES, JR., supra note 11, § 4.8, at 329; R. MALLEN & V. LEvIr, supra note 11, § 45, at 74-76; W. PROSSER, supra note 1, § 120, at 854-55. 23 See O'Malley-Kelly Oil & Auto Supply Co. v. Gates Oil Co., 73 Colo. 140, 214 P. 398 (1923); Barton v. Woodward, 32 Idaho 375, 182 P. 916 (1919); Milner v. Hare, 125 Me. 460, 134 A. 628 (1926); Novick v. Becker, 4 Wis. 2d 432, 90 N.W.2d 620 (1958).