Attorneys – Litigation privilege

Where two defendant attorneys have moved to dismiss a complaint that alleges “civil conspiracy for abuse of process,” that motion should be allowed because the litigation privilege protects the defendants from liability.

“This case arises out of a dispute between two former business partners, plaintiff Joseph Kerrissey, III and defendant William Bruce. Defendants James Mitchell and Gary Cruickshank provided legal counsel to Bruce. According to the amended complaint, they assisted him in initiating involuntary bankruptcy proceedings against Kerrissey and his company so that Bruce could avoid paying money he owed to Kerrissey. As relevant here, the amended complaint asserts a claim against attorneys Mitchell and Cruickshank for what the amended complaint alleges is ‘civil conspiracy for abuse of process’ based on their involvement in Bruce’s alleged scheme. …

“The amended complaint alleges that Mitchell and Cruickshank, both of whom are attorneys, participated in Bruce’s plan to abuse the involuntary bankruptcy process for his own illegitimate purposes. … Plaintiffs contend that the litigation privilege is inapplicable because the claims against Mitchell and Cruickshank arise out of their role in generating a windfall for Bruce in his business endeavors, and not their efforts to advance and conduct the bankruptcy litigation.

“Plaintiffs rely on Kurker v. Hill, 44 Mass. App. Ct. 184 (1998), which held that the litigation privilege did not ‘encompass the defendant attorneys’ conduct in counselling and assisting their clients in business matters generally,’ id. at 192. But Kurker is inapposite. In Kurker, the attorneys rendered ‘legal advice and assistance to their clients’ in relation to the purchase and sale of corporate assets and ‘engaged in a conspiracy to undervalue the assets.’ … Their assistance was primarily related to ‘counselling and assisting their clients in business matters generally,’ rather than pursuing litigation. … Here, however, the alleged wrongful actions of Mitchell and Cruickshank occurred in the context of preparing for and conducting litigation — specifically, the involuntary bankruptcy proceedings. Thus, the litigation privilege applies to the advice and legal services they rendered.

“Plaintiffs further argue that the privilege does not apply where, as here, an attorney’s actions were taken at the direction of, and benefited, an individual who was not actually a party to the underlying ‘judicial proceedings or contemplated litigation.’

“According to the amended complaint, Mitchell and Cruickshank engaged in conduct that resulted in litigation aimed at Kerrissey and his company, at the behest of Bruce, their client. Whatever claims Kerrissey may have against Bruce arising out of those proceedings, the litigation privilege shields Mitchell and Cruickshank from liability. As noted, the litigation privilege is a ‘broad’ and ‘strong’ protection that ‘ought not to be impaired by numerous and refined distinctions.’ … Holding otherwise would open the floodgates to a host of new lawsuits targeting attorneys when the underlying litigation is initiated or funded by a non-party to the proceeding. That result contravenes the purpose of the privilege, which is to free attorneys ‘to expend time and resources … representing clients, [rather than] in their own defense.’ … Accordingly, the claims against Mitchell and Cruikshank are barred by the privilege, and will be dismissed.”

Kerrissey, et al. v. Bruce, et al. (Lawyers Weekly No. 02-362-23) (6 pages) (Saylor, C.J.) (Civil Action No. 21-11277-FDS) (Aug. 14, 2023).

Click here to read the full text of the opinion.