Day on Torts
The defendant (Dr. Clark) in a civil case sued the plaintiff’s lawyers alleging “claims of negligence, intentional infliction of emotional distress, tortious interference with her business relationship with her insurance carrier and malicious prosecution. Dr. Clark sought compensatory and punitive damages arising from the filing and prosecution of the Dempsey action (the case filed originally filed by the plaintiff’s lawyers) .
The attorneys moved for summary judgment, alleging that they did not owe a duty to Dr. Clark. The trial judge sent two certified questions to the West Virginia Supreme Court. The Court ruled that it “could find no justification for imposing a duty of care in favor of an opposing party upon counsel. Imposition of such a duty can only work to the detriment of counsel’s own client and would adversely impact counsel’s duty of zealous advocacy for his or her own client and would create an impossible and unjustified conflict of interest. Accordingly, we hold that an attorney for a party in a civil lawsuit does not owe a duty of care to that party’s adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney.”
Next, the Court discussed whether there was a litigation privilege applicable defeat the claims. The Court posed the issue as follows: “Is a party to a civil action barred, by virtue of the litigation privilege, from bringing claims for civil damages against the opposing party’s attorney if the alleged act of the attorney in the course of the attorney’s representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?”