In Connecticut, do attorneys have “a license to lie” during court proceedings?

According to one Connecticut Supreme Court justice, the answer to the question–  do Connecticut attorneys have “a license to lie” during court proceedings– is at least a qualified yes

In Simms v. Seaman23 A.3d 1 (2011), a divided Connecticut Supreme Court held that attorneys cannot be civilly liable for fraud engaged in during the course of litigation.

Translating that legalese, if a Connecticut attorney lies, misrepresents facts, hides evidence, or otherwise engages in fraudulent litigation activity during the course of litigation, the victim of the litigation fraud cannot sue the attorney for damages suffered as a direct result of that litigation fraud. This does not limit you from suing your own attorney, but only an attorney who does not represent you.

It is important to note that the Simms Court majority did point out that there are other remedies potentially available, such as seeking sanctions against an attorney, filing a grievance, or opening a judgment rendered if it was based upon the attorney’s fraud. (Unfortunately, as another of my cases has demonstrated, the grievance process, at least in Connecticut, leaves a lot to be desired.) While an attorney in Connecticut who engages in fraudulent activity during litigation could potentially suffer serious consequences, including disbarment, if you are monetarily damaged by an attorney’s Connecticut litigation fraud, you cannot seek compensation in civil court for those damages.

This is a surprising decision because there are states, such as New York, where attorneys who commit fraud during litigation are not only subject to civil suit, they are also subject to potential criminal charges and even imprisonment. See, e.g., N.Y. Judiciary Law § 487. A party damaged by a New York attorney’s litigation fraud can collect treble damages. That means, for example, if you prove that there were $200,000 in actual damages as a result of the litigation fraud, a New York court would award $600,000. That extra amount is considered to be a penalty for egregious conduct.

In contrast, in Connecticut, if you suffered $200,000 in damages as a direct result of attorney fraud during the course of litigation, you would likely not be able to collect a penny from the attorney (unless you could obtain at least partial compensation through the imposition of sanctions).

What is also interesting about the Simms case is how the majority opinion and the dissent viewed the same facts and case law so differently. While getting into details is beyond the scope of this particular post, for one example, the majority opinion lists 12 states that have statutes that specifically impose liability for fraud during litigation (the states include Arkansas, California, Indiana, Iowa, Minnesota, Montana, New York, North Carolina, North Dakota, Oklahoma, South Dakota, and Wyoming). In addition, the majority noted that the Hawaii Supreme Court also determined attorneys could be liable for litigation fraud. Based on this, the majority concluded: “in contrast to these jurisdictions, the Connecticut legislature, like more than thirty-five other state legislatures, has not chosen to follow a similar path.”

The Connecticut Supreme Court justice who dissented in Simms viewed the law totally differently, stating that “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.” (Emphasis added) Both interpretations of the law cannot be simultaneously true.  It is an interesting side note to this very interesting case and it illustrates just how complex the law can be (even Connecticut Supreme Court justices have diametrically opposed views as to what the law actually is), and why litigation in general can be frustratingly complex for non-attorneys.

Before you have a totally cynical reaction to the Simms decision, the Connecticut Chapter of the American Academy of Matrimonial Lawyers[filed a brief in the Simms case seeking to have the Court impose liability on attorneys for such fraud. As the AAML wrote: “To allow attorneys immunity from claims for fraud based on their actions in court, where attorneys should be at the height of their ethical vigilance, would send the wrong message to lawyers. Moreover, it would send the wrong message to the public who relies on the ethical underpinnings of the legal system. Such a ruling would have a particularly pernicious effect on proceedings in family court, where each party is so dependent on proper disclosure by the other.” Unfortunately, a majority of the Connecticut Supreme Court did not agree. (The results in my clients’ case against the Connecticut Statewide Grievance Committee are even more disheartening for those who believe attorneys should be held to high ethical standards.)

It is important to note that the Simms decision does not really give a license to lawyers to lie in Connecticut but it does make it virtually impossible to directly collect damages through a civil suit for such fraudulent activity during litigation against an attorney who does not represent you. Depending on the circumstances and facts of your case, there may be other options, but they do not come close to equaling the options in states that permit direct recovery for damages incurred as a result of an attorney’s fraudulent activity during the course of litigation

As usual, clients should stay informed of what is going on in their cases, and, of course consult an attorney for your own particular case.

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

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