Lawyers Are Fully Immune From Fraud Claims Based on Conduct During Judicial Proceeding

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By Joan C. Rogers  


Attorneys are absolutely immune from liability to a client's opponent for fraud or intentional infliction of emotional distress claims based on their conduct during judicial proceedings, a divided Connecticut Supreme Court held May 21 (Simms v. Seaman, Conn., No. SC 18839, 5/21/13, aff'g 27 Law. Man. Prof. Conduct 431).

Speaking for the majority, Justice Peter T. Zarella posited that allowing fraud claims against lawyers for litigation conduct could open the floodgates for disgruntled litigants to sue opposing counsel and ultimately could discourage attorneys from being vigorous advocates. Other remedies such as court sanctions and disciplinary proceedings are sufficient to deter litigators from engaging in fraud, Zarella said.

However, two members of the court objected to the idea of a bright-line rule of absolute immunity for fraud claims and contended that alleged fraud victims should be permitted to sue opposing counsel after clearing certain preliminary hurdles.

What About Other Jurisdictions?

The majority in Simms acknowledged that at least 12 states have abrogated the litigation privilege for claims of fraud by enacting statutes for that purpose: Arkansas, California, Indiana, Iowa, Minnesota, Montana, New York, North Carolina, North Dakota, Oklahoma, South Dakota, and Wyoming.

But many jurisdictions, the majority said, have been moving in the opposite direction, applying the privilege to new theories of liability and even to all acts associated with a lawyer's advocacy function.

The concurrence in Simms insisted, however, that “other jurisdictions allow an attorney to be sued for fraudulent conduct that occurs during judicial proceedings.” Similarly, the dissent asserted that “courts in other jurisdictions expressly have rejected the view that attorneys should be granted absolute immunity for fraud committed in a judicial proceeding.”

Alimony Dispute

In the case before the court, Robert Simms sued five lawyers who had represented his ex-wife during long-running post-divorce litigation over how much alimony he had to pay her. Simms asserted that the lawyers actually knew his ex-wife had inherited large sums of money from her uncle's estate during the litigation, yet they kept mum about this development and instead painted their client as financially pinched.

When the trial court learned of the ex-wife's inheritance, it ruled that the information had been improperly withheld and that the wrongful concealment caused Simms severe emotional trauma and cost him some $400,000 in extra legal expenses.

The trial court nevertheless dismissed Simms's claims against the lawyers for fraud and emotional distress, ruling as a matter of law that the lawyers were shielded by the litigation privilege. The intermediate appellate court agreed that the lawyers were immune from the fraud and emotional distress claims.

The state's high court affirmed, concluding that the privilege barred Simms's fraud claims against the lawyers and also precluded his emotional distress claims, which the court said were simply derivative of the fraud claims.

Amicus Brief by Matrimonial Lawyers.

Under the Restatement (Second) of Torts §586, an attorney is absolutely privileged to publish defamatory matter about another in communications preliminary to or during the course of a judicial proceeding, if the defamatory statement has some relation to the proceeding.

Nearly every state has embraced this formulation of the privilege, Zarella said, explaining that courts typically view the privilege as necessary to keep lawyers from being intimidated by the prospect of frivolous suits and to preserve access to the courts.

For the same reasons, Zarella said, Connecticut too has embraced the litigation privilege, holding that it protects lawyers from tort liability based on allegedly defamatory statements in judicial proceedings. He acknowledged, however, that Connecticut courts have refused to apply the privilege to claims against lawyers for abuse of process, vexatious litigation, and malicious prosecution, because the stringent requirements for pursuing those claims provide built-in restraints that minimize the risk of subjecting lawyers to inappropriate suits.

In an amicus brief, the Connecticut Chapter of the American Academy of Matrimonial Lawyers urged the court not to apply the litigation privilege to the fraud claims in this case.

Immunizing lawyers from fraud claims based on their actions in court would send the wrong message to lawyers and the public, according to the brief. “Such a ruling would have a particularly pernicious effect on proceedings in family court, where each party is so dependent on proper disclosure by the other,” the brief asserted.

In an email to BNA, Sally Oldham, president of the Connecticut chapter, said: “We (the CCAAML) are pleased that our brief was quoted but disappointed that the Court majority did not adopt our view.”

The brief makes clear that it reflects only the Connecticut chapter's views and not necessarily those of the American Academy of Matrimonial Lawyers.

Absolute Privilege

The supreme court concluded as a matter of policy that the litigation privilege protects lawyers against fraud claims premised on their conduct during judicial proceedings. Zarella offered four reasons:

• Unlike claims for vexatious litigation and abuse of process, for which the privilege has been held unavailable, fraudulent conduct by attorneys does not subvert the underlying purpose of a judicial proceeding.

• Fraud claims are essentially similar to defamation claims and thus warrant the same protection for lawyers.

• Other penalties and remedies are available to redress fraudulent conduct, including court sanctions and disciplinary action.

• Federal courts in suits under 42 U.S.C. §1983 have held that the litigation privilege shields government lawyers from liability for their actions when functioning as advocates.


Attorneys need to be shielded from fraud claims for their conduct in litigation for the same reasons that the litigation privilege protects attorneys from defamation claims and shelters government lawyers from suits under §1983, the majority found. In particular, Zarella expressed concern that the mere possibility of fraud claims would inhibit lawyers from acting as zealous advocates:  

[A]brogation of the litigation privilege to permit claims of fraud could open the floodgates to a wave of litigation in this state's courts challenging an attorney's representation, especially in foreclosure and marital dissolution actions in which emotions run high and there may be a strong motivation on the part of the losing party to file a retaliatory lawsuit.



Limited Immunity Only

In a concurring opinion, Justice Dennis G. Eveleigh argued against a bright-line rule of absolute immunity in cases like this one. “Extending absolute immunity to situations where attorneys knowingly make fraudulent statements during judicial proceedings would, in effect, be giving attorneys a license to lie,” he asserted.

Lawyers should be subject to a separate suit for fraud, Eveleigh suggested, if the trial court makes a finding of fraud or dishonesty on a motion for sanctions, or if a grievance committee makes a similar finding of misconduct under Connecticut Rule of Professional Conduct 8.4(3), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Requiring a finding of fraud from the trial court or grievance committee would provide an adequate safeguard against frivolous actions and protect a lawyer's duty to fully represent his client, he contended.

But no action for fraud should be allowed against the lawyers in this case, Everleigh said, because the trial court made its fraud ruling in response to a motion for modification of alimony rather than a motion for sanctions, so the lawyers had no opportunity to present evidence at a hearing and argue on their own behalf.

Justice Richard N. Palmer dissented, arguing that absolute immunity should not apply to prevent fraud claims against lawyers in all cases. These claims should be permitted, he proposed, “if the plaintiff first seeks relief in the underlying proceeding or files a grievance complaint against the offending attorney and, in connection therewith, secures either a sanction against the attorney or a finding of attorney misconduct.”

Palmer contended that “The majority's decision to extend the litigation privilege to attorney fraud is out of step with the large majority of jurisdictions that, upon consideration of the issue, have expressly declined, either judicially or by statute, to broaden common-law immunity to include fraud.” The majority decision will rightly be viewed as unduly protective of lawyers, he contended.

John R. Williams of John R. Williams & Associates, New Haven, Conn., represented Robert Simms. Counsel for the defendant lawyers were Patrick M. Noonan and Matthew H. Geelan of Donahue, Durham & Noonan, Guilford, Conn.; William H. Prout Jr. of Wiggin and Dana, New Haven; Raymond J. Plouffe Jr. of Bai, Pollock, Blueweiss & Mulcahey, Shelton, Conn.; and Nadine M. Pare of Nuzzo & Roberts, Cheshire, Conn.

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