Massachusetts Court Applies Litigation Privilege to Dismiss Claims Against Attorney Accused of Fraudulent Activity During Trial | Hinshaw & Culbertson – Lawyers for the Profession®
Bassichis versus Flores189 NE3d 640 (2022)
The plaintiffs in the case were the creditors of William von Thaden, who was married to Kimberly von Thaden until their divorce in 2017. The defendant, Michael I. Flores (defendant), represented Kimberly in the divorce proceedings under- underlying. The plaintiffs accused the defendant of making false statements during the underlying divorce proceedings when representing the wife. The court, however, denied the plaintiffs’ claims and held that litigation privilege applied to the defendant’s conduct and communications during the underlying legal proceeding.
During their marriage, the husband owned and operated a successful construction business, which was the main source of income for his family. However, by 2014 the business was no longer profitable. In 2017, the company owed thousands of dollars in business loans. Soon after, husband and wife considered divorce. The husband promised the wife that she would receive all marital property. She then hired the defendant to represent her in the divorce. The husband appeared for himself.
The accused filed a divorce complaint on behalf of the wife. Prior to trial, the defendant submitted proposed findings of fact, exhibits and a motion for judgment awarding all marital assets to the wife. The defendant informed the judge in his opening statement that the husband agreed with all of the proposed findings of fact and the proposed judgment. The defendant explained that he submitted the case as an “adversarial case” because the husband intended to file for bankruptcy after the divorce became final.
After the dissolution judgment was finalized, the husband filed for bankruptcy, naming the plaintiffs as creditors. The bankruptcy case was closed in May 2019 without any distribution to the husband’s creditors. In July 2020, creditors filed suit against the defendant based on his representation of the wife in the divorce. The plaintiffs alleged that the defendant participated in fraudulent transfer, civil conspiracy and violations of the Uniform Fraudulent Transfers Act.
The defendant moved to dismiss the complaint on the basis that the plaintiffs’ claims were barred by litigation privilege. In their opposition, plaintiffs argued that litigation privilege protected only communications made during litigation and did not protect defendant’s conduct in carrying out a scheme to defraud plaintiff’s creditors by transferring all marital property to the wife through collusive divorce proceedings. According to the plaintiffs, their claims were based on the “respondent’s conduct in carrying out the unlawful transfer of [the husband’s] assets to his wife. “The trial court granted the defendant’s motion to dismiss. The Massachusetts Supreme Court granted the review.
The court explained that the application of the privilege extends to communications preliminary to a proposed legal proceeding or in the course of a legal proceeding. The privilege also protects defamatory statements “even if made maliciously or in bad faith”, since a privilege that shields an individual from liability for defamation would be of little value if the individual were subject to liability under of another theory of tort liability.
The court noted that litigation privilege policies promote a zealous defense by allowing attorneys “complete freedom of expression and candor in their communications in their efforts to obtain justice for their clients.” It is in the public interest to grant lawyers full freedom of expression in the conduct of cases, the defense and defense of the rights of their constituents, and this freedom of discussion must not be fettered by numerous distinctions and refined. However, the court noted that privilege will not always protect lawyers from their own wrongdoing. For example, a court has the inherent power to punish a lawyer for misconduct.
Litigation privilege applies to the actions of a lawyer during a legal proceeding, as well as to communications. To find otherwise would invite lawyers to divide their interests between defending their client and protecting themselves from a retributive suit.
Importance of decision
This decision affirms that solicitor-client privilege is widely enforced. This case demonstrates that lawyers enjoy wide latitude in their conduct of litigation and their arguments when representing clients.