Simms v. Seaman

• Decision Date: 21 May 2013
• Docket Number: SC18839
• Court: Connecticut Supreme Court
• Parties: SIMMS v. SEAMAN

SIMMS v. SEAMAN

SC18839

Supreme Court of Connecticut

Dated: May 21, 2013

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DISSENT

PALMER, J., dissenting. The issue in this case is whether attorneys should be granted absolute immunity from claims of civil fraud stemming from their conduct during judicial proceedings. Although I agree that the importance of vigorous representation of and fidelity to one's clients warrants protecting an attorney from the threat of baseless retaliatory claims, I disagree with the majority that absolute immunity is necessary to achieve that end with respect to claims of fraud. In my view, such claims should be permitted 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. This limited immunity is sufficient to protect attorneys against the threat of frivolous, retaliatory litigation, on the one hand, and provides a fair opportunity for recovery by a party who has been defrauded by opposing counsel, on the other.

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. Moreover, the majority ignores the strong presumption against absolute immunity and dismisses the preferred option of limited immunity without analysis or justification. Finally, because no legitimate purpose is served by granting attorneys absolute litigation immunity rather than limited immunity, the majority's decision rightly will be viewed—by nonlawyers especially— as unduly protectionist of attorneys. Applying the limited immunity that I propose, I would conclude that the plaintiff, Robert Simms, should be permitted to pursue his claim that, during the proceedings on his motion for modification of alimony, the defendants Penny Q. Seaman, Susan A. Moch, Kenneth J. Bartschi, Brendon P. Levesque and Karen L. Dowd fraudulently did not disclose the fact that the plaintiff's former spouse, Donna Simms,¹ was the beneficiary of an impending inheritance from her uncle, Albert Whittington Hoge-land.² For the foregoing reasons, I respectfully dissent.

This court has long held that absolute immunity bars defamation and related claims arising out of statements made in the course of judicial or quasi-judicial proceedings.³ See, e.g., Rioux v. Barry, 283 Conn. 338, 344-46, 927 A.2d 304 (2007). This common-law immunity is rooted in the belief that, ''in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. . . . Put simply, absolute immunity furthers the public policy ofencouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit.'' (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 786-87, 865 A.2d 1163 (2005). "As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive . . . .'' Rioux v. Barry, supra, 344. This principle applies equally to attorneys as to parties, "[b]ecause litigants cannot have [unfettered] access [to our courts] without being assured of the unrestricted and undivided loyalty of their own attorneys''; Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987); something that would be difficult, if not impossible, to achieve if attorneys were required to represent their clients under the constant threat of unwarranted, retaliatory actions.

As this court repeatedly has recognized, however, absolute immunity is such ''strong medicine . . . [that] not every category of persons protected by immunity [is] entitled to absolute immunity. In fact, just the opposite presumption prevails—categories of persons protected by immunity are entitled only to the scope of immunity that is necessary to protect those persons in the performance of their duties.'' (Emphasis added; internal quotation marks omitted.) Gross v. Rell, 304 Conn. 234, 247, 40 A.3d 240 (2012); accord Carrubba v. Moskowitz, 274 Conn. 533, 540-41, 877 A.2d 773 (2005). We employ this presumption against absolute immunity—the same presumption that the United States Supreme Court employs in determining whether absolute or limited immunity is appropriate in any given case; see, e.g., Burns v. Reed, 500 U.S. 478, 486-87, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991)—because absolute immunity provides a shield against meritorious claims no less than baseless ones. Consequently, this court has not barred all actions based on statements or conduct occurring during the course of litigation. Rather, ''whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests.'' Rioux v. Barry, supra, 283 Conn. 346.

Upon applying this balancing test, this court has concluded that absolute immunity does not apply to actions for abuse of process; Mozzochi v. Beck, supra, 204 Conn. 495; vexatious litigation; Rioux v. Barry, supra, 283 Conn. 348-49; or malicious prosecution. See McHale v. W.B.S. Corp., 187 Conn. 444, 450, 446 A.2d 815 (1982). In the case of each such tort, we concluded that the tort itself ''has built-in restraints that minimize the risk of inappropriate [retaliatory] litigation.'' (Internal quotation marks omitted.) Rioux v. Barry, supra, 348; accord Mozzochi v. Beck, supra, 495. Specifically, the three torts require, as a prerequisite to suit, that the previous action had been terminated in the plaintiff'sfavor, and all three torts have stringent additional requirements that provide further protection against inappropriate retaliatory claims.⁴ See Rioux v. Barry, supra, 347 (tort of vexatious litigation requires proof that defendant pursued unfounded civil claim against plaintiff with malice primarily for purpose other than to bring offender to justice, and without probable cause); Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 95 n.10, 912 A.2d 1019 (2007) (tort of abuse of process requires proof that defendant used legal process for wrongful and malicious purpose to attain unjustifiable end or object that process was not meant to effect); McHale v. W.B.S. Corp., supra, 447 (tort of malicious prosecution, which arises out of prior, unfounded criminal complaint, essentially requires same proof as tort of vexatious litigation).

Conversely, this court has held that attorneys are absolutely immune from defamation claims arising out of their conduct in judicial proceedings because of the absence of any mechanism, inherent in the tort of defamation or otherwise, for distinguishing wholly groundless claims from potentially meritorious ones. See, e.g., Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). Although this means that even meritorious defamation claims are foreclosed, the fundamental policy concern underlying absolute immunity⁵ ''outweigh[s] the interest of the private [litigant] in being free from defamation.'' Rioux v. Barry, supra, 283 Conn. 345.

As a general matter, fraud by an attorney is far more serious than defamation by an attorney.⁶ Indeed, the former, in contrast to the latter, necessarily provides the basis for sanctions in the underlying proceeding, or for a grievance complaint, or both.⁷ The prospect of these two disciplinary remedies undoubtedly serves as a significant deterrent to the unethical attorney who otherwise might opt to engage in fraudulent conduct. Neither remedy, however, is likely to be an adequate substitute for a civil action by a litigant who can establish damages arising out of an attorney's fraudulent misconduct. The primary issue presented by this case, then, is whether it is necessary or desirable to shield attorneys completely from claims of fraud, thereby foreclosing the possibility of any civil remedy against an attorney who commits fraud—no matter how egregious or harmful that fraud may be—by affording attorneys absolute immunity from such claims.⁸

If, as in cases of alleged attorney defamation, there was no viable way to protect attorneys against the threat of baseless fraud claims, it might well be that absolute immunity for claims of fraud would be warranted.⁹ Because, however, a litigant who can establish...