Saturday, September 10, 2022

A Lawyer's View On Attorney Maleficence

I ran across an interesting perspective by a lawyer on attorney maleficence. In many ways it is a warning to lawyers on the potential consequences if they commit crimes while representing clients. 

Lawyers generally think that their only liability risk comes from making mistakes in their representation of clients.  They think that so long as their representation of the client is negligence-free, no one is going to sue them based upon the legal work performed for that client.  Think again.

More and more often lately, lawyers are being sued along with their clients, and sometimes instead of their clients, for aiding their clients in some venture which a third party believes amounts to a tort or a breach of a fiduciary duty.  Two similar common law tort claims are used for this attack: civil aiding and abetting and civil conspiracy.  Together these causes of action are commonly referred to as “in-concert liability claims.”  There are a variety of ways that lawyers can be exposed to such claims, particularly if they are not thinking of this type of third-party exposure when they provide legal services to their clients. 

Most of the article discusses breaches of fiduciary duty by attorneys rather than outright crimes such as in my case but that is probably because our legal system tends to view crimes (especially fraud) committed by lawyers as part of their normal way of doing business. (which is why I say the judicial system is institutionally corrupt) 

I like the end where the article states that intentional torts (i.e. crimes) committed by lawyers are viewed by malpractice insurance companies as excluded from their policies. 

Moreover, because most in-concert liability claims involve an element of knowledge by the attorney, insurance companies may view these causes of action to be intentional torts.  The facts of the claim should be scrutinized carefully, particularly for claims of aiding and abetting torts, like fraud, where intent is a key element.  Since most policies contain exclusions for intentional torts, insurers may take the position that not only are such claims not covered for indemnity purposes, but there is no duty to defend as well. 

Actually it is both good and bad. Because lawyers would have to pay for damages from such crimes themselves, the judicial system makes such cases all but impossible to succeed no matter how strong the evidence.  This is exactly what has and is still happening to me. 

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