The Litigation Privilege as a Shelter for Miscreant Legal Counsel

Abstract

This article focuses on a pressing issue of national importance related to attorney conduct (or misconduct). The Litigation Privilege is a long-recognized immunity fashioned for attorneys to enable them to perform their functions as zealous advocates and litigators, without having to consider prospective non-client lawsuits aimed at their conduct in the course of representation. However, recent case law purports to expand the Litigation Privilege outside of its traditional contexts, posing a nationwide threat to attorney ethical standards. Broad readings of what sorts of legal assistance constitute “litigation” for the purposes of the application of the Litigation Privilege have recently been handed down by key courts, and the battle over whether fraudulent conduct on the part of attorneys may be covered under the Litigation Privilege continues to rage. This article analyzes these issues critically, asserting that these broad readings of the Litigation Privilege must be curtailed. Such attorney misconduct should not be shielded from aggrieved non-client redress. This article is a timely, nationally relevant contribution on the importance of “ethical lawyering” and how a fundamental legal doctrine should best effectuate its objectives.

Keywords: litigation privilege, attorney conduct, attorney-client privilege, attorneys – ethical standards, attorneys – liabilities, legal profession - reputation