Simms v. Seaman
The litigation privilege can protect an attorney against claims of fraud in connection with conduct during judicial proceedings. Robert and Donna Simms divorced in 1979. The husband successfully moved to modify alimony, and the wife appealed. Allegedly, the wife's attorneys claimed that the wife suffered from disadvantaged economic circumstances and failed to immediately disclose the wife's $359,000 inheritance. Robert Simms sued the attorneys, alleging that they fraudulently represented the wife's situation. The attorneys claimed that they were entitled to absolute immunity. The first reported decision that dismissed an action against an attorney on the basis of privilege was in 1606. The principle has been reiterated many times since. In Wood v. Gunston, a 1655 decision, an English court wrote, "[I]f a councellor speak scandalous words against one in defending his clyents cause, an action doth not lie against him." Although 12 jurisdictions have abolished the litigation privilege for fraud claims, courts in other jurisdictions have strengthened the privilege. In Connecticut, the litigation privilege does not bar claims against attorneys for malicious prosecution or vexatious litigation. Fraudulent conduct by lawyers is similar in essential respects to defamation, which is protected by the litigation privilege. The Connecticut Supreme Court agreed with the reasoning of Judge Learned Hand, who wrote, "it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." The majority of the Connecticut Supreme Court held that the Connecticut Appellate Court correctly found that the litigation privilege protects lawyers against claims of fraud for conduct during judicial proceedings. "[T]he mere possibility of such claims, which could expose attorneys to harassing and expensive litigation," wrote the majority, "would be likely to inhibit their freedom in making good faith evidentiary decisions and . . . negatively affect their ability to act as zealous advocates." Dissenting, Justice Richard Palmer characterized the majority's opinion as "unduly protectionist of attorneys." Palmer would permit claims to proceed, if a plaintiff first obtains a finding of attorney misconduct or a sanction against the attorney.