Plaintiff’s Emotional Distress Claims Against Opponent’s Attorneys Barred Under the Litigation Privilege

STONE v. PATTIS (App. Ct. Conn., July 16, 2013)

In 2003, the plaintiffs brought a federal action against the Connecticut town of Westport. The plaintiffs were originally represented by counsel in the federal action, but at some point the relationship between the plaintiffs and their counsel deteriorated and their counsel withdrew from the representation. Prior to the plaintiffs’ counsel’s withdrawal, an associate from the plaintiffs’ counsel’s firm left the firm and went to work for the firm retained by their opponent, the town of Westport. After the withdrawal, the plaintiffs continued to represent themselves and eventually withdrew the federal action against the town.

The plaintiffs then filed a second suit against counsel for the Town of Westport related to their conduct in the federal suit and alleged various claims, including tortious interference with a fiduciary relationship, abuse of process, fraud, breach of fiduciary duty, violations of Connecticut’s Unfair Trade Practices Act (CUTPA), conspiracy, and negligent infliction of emotional distress. In support of these claims, the plaintiffs alleged that a conflict of interest arose when the associate went to work for the defendant adversary firm and that the defendant adversary firm also made misrepresentations to the federal court in the federal action and conspired with the plaintiffs’ former counsel with respect to the subpoenaing of witnesses in the federal action.

After a flurry of filings, including various amended complaints and general procedural confusion on the part of the plaintiffs, the trial court eventually struck all of the plaintiffs’ claims against the defendant adversary firm with exception of the negligent infliction of emotional distress claim finding that the claims against the defendant adversary firm were legally insufficient because the plaintiffs never alleged that this associate at their former attorney’s office had any knowledge about the federal action or was involved in the federal action at any point in time. Shortly after striking those claims, the court then dismissed the plaintiffs’ remaining claim of negligent infliction of emotional distress finding that plaintiffs’ claims were barred under the litigation privilege, a privilege that affords immunity to attorneys for statements made during the course of judicial proceeding while representing their clients.

The plaintiffs subsequently appealed. On appeal, the court affirmed the trial court’s rulings striking the majority of the plaintiffs’ claims and dismissing the plaintiffs’ claims of negligent infliction of emotional distress. After addressing many of the plaintiffs’ extraneous arguments about various procedural improprieties of the trial court, the Appellate Court first examined whether the trial court correctly struck the plaintiffs’ claims of fraud, violations of CUTPA, abuse of process, conspiracy, and fiduciary duty claims.

The Appellate Court declined to review the plaintiffs’ claims that the trial court improperly struck its claims of violations of CUTPA, abuse of process, conspiracy, and fiduciary duty claims as they were inadequately briefed for its review. However, in declining to review the claims, the court made note of the general rule that attorneys are not held liable to persons other than their clients for rendering negligent services and that an attorney’s duty to his or her clients would be undermined if he or she could be held liable to their adversaries. The court also went on to say that in support of these counts the plaintiffs relied solely on their argument that the defendant adversary firm’s hiring of their former firm’s associate created a conflict of interest but that the plaintiffs never alleged any involvement by this associate in the underlying federal suit.

The court found that without adequate briefing it would not disturb the trial court’s holding. The court also noted that with respect to the abuse of process claims, the plaintiffs did not make sufficient allegations to support their claims. The court concluded that while the plaintiffs had made general allegations of fraud in their complaint, they did not point to the requisite specific misconduct that was intended to cause specific injury outside the course of normal litigation necessary for sustaining such a claim.

The Appellate Court then addressed the propriety of the trial court’s ruling dismissing the plaintiffs’ negligent infliction of emotional distress claims. In upholding the trial court’s ruling, the Appellate Court noted that the issue of whether the litigation privilege affording immunity to attorneys in the course of judicial proceedings applied to negligent infliction of emotional distress was an issue of first impression. The court then went on to cite to a recent Supreme Court decision, Simms v. Seaman, 308 Conn. 532 (2013) which clarified that an attorney is shielded from suit stemming from conduct while representing or advocating for a client during a judicial proceeding that was brought for a proper purpose. The court, applying Simms, found that the plaintiffs’ allegations of various conspiracies regarding the subpoenaing of witness and erroneous statements of fact to the federal court were all communications made within the context of a judicial proceeding, namely the federal action, rendering the defendant adversary firm immune from liability.

Impact: This case demonstrates the negative sentiment that Connecticut courts generally carry against suits brought by an attorney’s former adversary for misconduct, even if the suit alleges overt acts of misconduct on the part of the adversary’s attorney. Additionally, this case explicitly applies the Supreme Court’s holding in Simms v. Seaman, 308 Conn. 532 (2013) and expands its holding to negligent infliction of emotional distress claims and conduct in the course of judicial proceedings. It also demonstrates the courts’ willingness to apply the litigation privilege broadly to most adversary third party claims against attorneys.