Robinson v. Volkswagenwerk AG

• Decision Date: 01 August 1991
• Docket Number: No. 90-5082,90-5082
• Citation: 940 F.2d 1369
• Parties: Harry ROBINSON and Kay Robinson, Eva May McCarthy and George Samuel Robinson, Plaintiffs-Appellees, v. VOLKSWAGENWERK AG, Defendant, Greer & Greer, Defendant-Appellee, and Herzfeld & Rubin, P.C., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1369

940 F.2d 1369

Harry ROBINSON and Kay Robinson, Eva May McCarthy and George

Samuel Robinson, Plaintiffs-Appellees, v. VOLKSWAGENWERK AG, Defendant, Greer & Greer, Defendant-Appellee, and Herzfeld & Rubin, P.C., Defendant-Appellant.

No. 90-5082.

United States Court of Appeals, Tenth Circuit.

Aug. 1, 1991.

Herbert Rubin (and Daniel V. Gsovski, Herzfeld & Rubin, New York City, Richard M. Eldridge & John F. Tucker, Rhodes, Hieronymous, Jones, Tucker & Gable, Tulsa, Okl., with him on the brief), for defendant-appellant.

Thomas Elke, Palo Alto, Cal. (Ronald D. Mercaldo & Lucille D. Sherman, Law Offices of Ronald D. Mercaldo, Ltd., Winton D. Woods, Tucson, Ariz., Maynard I. Ungerman, Ungerman & Iola, Tulsa, Okl., with him, on the brief), for plaintiffs-appellees.

Jack Redhair (and Nancy Coomer, Chandler, Tullar, Udall & Redhair, Tucson, Ariz., with him on the brief), for defendant-appellee.

Before TACHA and BALDOCK, Circuit Judges, and KANE, District Judge. ^*

BALDOCK, Circuit Judge.

Defendant-appellant Herzfeld & Rubin, P.C. (H & R) appeals from an interlocutory order of the district court denying a motion to dismiss and a motion for summary judgment filed by itself and defendant Volkswagenwerk AG (VWAG). See V R. doc. 199 (Amended Order filed Apr. 25, 1990). Normally, our jurisdiction under 28 U.S.C. Sec. 1291 extends only to final orders. Appellant H & R correctly maintains that we have jurisdiction based on the collateral order doctrine as applied to a denial of absolute immunity. See Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2697, 73 L.Ed.2d 349 (1982); Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979); Abney v. United States, 431 U.S. 651, 657-63, 97 S.Ct. 2034, 2039-42, 52 L.Ed.2d 651 (1977); Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Appellant also urges us to exercise pendent appellate jurisdiction over several interlocutory rulings of the district court pertaining to the merits of the controversy. See Snell v. Tunnell, 920 F.2d 673, 676 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991).

This case has a protracted history which we need not detail other than to say that the plaintiffs have been unsuccessful in obtaining relief for injuries suffered in a tragic automobile accident. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Robinson v. Volkswagen of America, Inc., 803 F.2d 572 (10th Cir.1986); Robinson v. Audi NSU Auto Union Aktiengesellschaft, 739 F.2d 1481 (10th Cir.1984). In its present incarnation, plaintiffs include claims for negligence, strict products liability, and breach of warranty. See I R. doc. 142 at pp 97-100 (count I). The district court has ruled that these claims will not be relitigated given the previous adverse final judgment. See I R. doc. 64 at 3; V R. doc. 199 at 3. Also included is a malpractice claim against plaintiffs' previous trial counsel, defendant Greer & Greer (G & G). I R. doc. 142 at pp 103-07 (count III). Plaintiffs also claim that defendant VWAG is liable for fraud in connection with H & R's answers to interrogatories and representations at trial. I R. doc. 142 at pp 108-09 (count IV). In this same regard, plaintiffs also claim that H & R is independently liable for fraud in its litigation conduct. Id. at pp 101-02 (count II), 108-09 (count IV). According to plaintiffs, H & R fraudulently concealed the true relationship among VWAG and Audi NSU and Auto Union from the plaintiffs, thereby precluding the plaintiffs from using critical liability evidence against VWAG and collecting damages. G & G has crossclaimed against defendants H & R and VWAG based on the same theories.

H & R claims that it is absolutely immune from civil liability for damages based upon its discovery and courtroom conduct in the previous trial. The district court rejected this theory, stating that "any immunity that might attach to a private attorney's conduct does not attach to the conduct alleged in this case to be fraudulent." V R. doc. 199 at 4. Our review of the district court's legal determination on absolute immunity is de novo. See Snell, 920 F.2d at 694. Given the sparing recognition of absolute immunity by both the Supreme Court and this court, one claiming such immunity must demonstrate clear entitlement. See Burns v. Reed, --- U.S. ----, 111 S.Ct. 1934, 1944-45, 114 L.Ed.2d 547 (1991); Forrester v. White, 484 U.S. 219, 230, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988); Snell, 920 F.2d at 692-93; Rex v. Teeples, 753 F.2d 840, 843-44 (10th Cir.), cert. denied, 474 U.S. 967, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985); Lerwill v. Joslin, 712 F.2d 435, 440 (10th Cir.1983).

In resolving absolute immunity claims, the Supreme Court has taken a functional approach after considering the history of common law immunity. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 334-35, 345, 103 S.Ct. 1108, 1115, 1120, 75 L.Ed.2d 96 (1983) (absolute immunity for witnesses). Relevant factors include the recognition of immunity at common law, the risk of vexatious litigation given the function involved, and the availability of checks other than civil litigation if absolute immunity was recognized. ¹ Burns, 111 S.Ct. at 1941-44; Mitchell v. Forsyth, 472 U.S. 511, 521-22, 105 S.Ct. 2806, 2813, 86 L.Ed.2d 411 (1985). In this case, however, the absolute immunity precedent indicates that H & R's claim of absolute immunity would not be recognized at common law; we need proceed no further. See Tower v. Glover, 467 U.S. 914, 922-23, 104 S.Ct. 2820, 2825-26, 81 L.Ed.2d 758 (1984); Burns, 111 S.Ct. at 1945 (Scalia, J., concurring in judgment in part and dissenting in part) (common law tradition of immunity is a necessary, but not sufficient, condition for absolute immunity in Sec. 1983 actions).

Concerning suits by litigants other than an attorney's own client, the general rule is that:

[i]f an attorney is actuated by malicious motives or shares the illegal motives of his client, he may be personally liable with the client for damage suffered by a third person as a result of the attorney's actions.

7 Am.Jur.2d Attorneys at Law Sec. 235 at 275 (1980 & 1991 Supp.). Accord Anderson v. Canaday, 37 Okl. 171, 131 P. 697, 699-700 (1913). ² Our research suggests that only in a narrow class of cases involving defamation claims has the Supreme Court acknowledged a common law tradition of absolute immunity for private lawyers. The Supreme Court recently discussed the concept in further defining the scope of absolute immunity for prosecutors.

Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to the proceeding), and also for eliciting false and defamatory testimony from witnesses. See, e.g., Yaselli v. Goff, 12 F.2d 396, 401-402 (CA2 1926), summarily aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927); Youmans v. Smith, 153 N.Y. 214, 219-220, 47 N.E. 265 (1897); Griffith v. Slinkard, 146 Ind. 117, 122, 44 N.E. 1001, 1002 (1896); Marsh v. Ellsworth, 50 N.Y. 309, 312-313 (1872); Jennings v. Paine, 4 Wis. 358 (1855); Hoar v. Wood, 44 Mass. 193, 197-198 (1841). See also King v. Skinner, Lofft 55, 56, 98 Eng.Rep. 529, 530 (K.B.1772), where Lord Mansfield observed that "neither party, witness, counsel, Jury, or Judge can be put to answer, civilly or criminally, for words spoken in office."

Burns, 111 S.Ct. at 1941. See also Briscoe, 460 U.S. at 335, 103 S.Ct. at 1115 (citing King v. Skinner); Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978); Imbler, 424 U.S. at 421-24, 96 S.Ct. at 990-92 (discussing Yaselli and Griffith ).

We have reviewed the cases cited by the Supreme Court and must conclude that while absolute immunity might be afforded government lawyers on these claims, such immunity is not available for a private law firm. The cases relied upon by the Supreme Court support absolute immunity (1) for prosecutors on malicious prosecution and defamation claims and (2) for private lawyers on defamation claims. ³

All lawyers are protected by an absolute privilege against defamation actions based upon litigation conduct in judicial proceedings. See 2 F. Harper, F. James & O. Gray, The Law of Torts Sec. 5.22 at 191 (1986); 3 Restatement (Second) of Torts Sec. 586 at 247-48 (1977); Okla.Stat. Ann. tit. 12, Sec. 1443.1 (1980 & 1991 Cum.Supp.); Kirschstein v. Haynes, 788 P.2d 941, 947-48, 954 (Okla.1990) (privilege extends to claims for defamation and intentional infliction of emotional distress). The same rule does not apply to claims for malicious prosecution. While prosecuting attorneys are subject to an absolute privilege, Yaselli, 12 F.2d at 402-03,

attorneys employed by private persons usually appear to come under the general principle and they are liable under the same conditions that would subject a layman to liability for encouraging, without probable cause and for an improper purpose, a third person to instigate criminal proceedings against another.

1 F. Harper, F. James & O. Gray, The Law of Torts, Sec. 4.3 at 414 (1986); Restatement (Second) of the Law of Torts Sec. 653, comment f & illus. 6. Likewise, in prosecuting civil proceedings, if "an attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, ... he is subject to the same liability as any other person." Restatement (Second) of the Law of Torts Sec. 674, comment d; Reeves v. Agee, 769 P.2d 745, 755 (Okla.1989) ("We know of no rule which gives lawyers absolute immunity for malicious prosecution.") (footnote omitted).

We think that a similar rule applies in this case. While we recognize that prosecutors and government lawyers defending civil actions have been granted absolute immunity on similar...