ZARELLA, J.
The principal issue in this appeal is whether attorneys are protected by the common-law doctrine of absolute immunity
The following facts and procedural history are set forth in the Appellate Court's opinion. "The plaintiff and Donna Simms were married from 1961 until 1979, when they divorced, and the plaintiff was ordered to pay periodic alimony. The plaintiff filed a motion to modify the alimony payments on November 29, 2004, which was granted by the court [on October 25, 2005]. Donna Simms appealed from that judgment [on November 10, 2005], and, on August 14, 2007, [this] [c]ourt reversed the judgment and remanded the case to the trial court for further proceedings. Simms v. Simms, 283 Conn. 494, 510, 927 A.2d 894 (2007).
"From late 2005 until approximately August 14, 2007, Bartschi, Levesque and Dowd represented Donna Simms in her appeal to [this] [c]ourt.
"Moch represented Donna Simms during the years 2006 and 2007.
"Throughout the periods that the defendants represented Donna Simms, they affirmatively represented to the Superior Court and to [this] [c]ourt that Donna Simms `was in highly disadvantaged economic circumstances' and that the plaintiff should `be compelled to pay substantial sums of money to Donna Simms for her necessary support and maintenance.' The defendants made such representations despite [allegedly] knowing that Donna Simms had become the beneficiary of a substantial bequest from her uncle, Albert Whittington Hogeland.
"On October 17, 2008, the trial court ruled that ... information concerning the inheritance ... improperly had been concealed from the court and from the plaintiff.
"[On the basis of these allegations, the] plaintiff filed an amended complaint in the Superior Court on June 19, 2009.
The plaintiff appealed to the Appellate Court, claiming that the trial court improperly had determined that the defendants were absolutely immune from liability for damages on grounds of fraud and intentional infliction of emotional distress. Id., at 655-66, 23 A.3d 1. The defendants argued that the trial court properly had determined that the plaintiff's claims were barred by the doctrine of absolute immunity and urged, as an alternative ground for affirming the trial court's judgment, that the plaintiff's complaint had failed to state a cause of action. Id., at 656, 23 A.3d 1. The Appellate Court concluded that the claims were precluded by the litigation privilege and, with one panel member dissenting,
"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 583, 50 A.3d 802 (2012). Additionally, whether attorneys are protected by absolute immunity for their conduct during judicial proceedings is a question of law over which our review is plenary. See, e.g., Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009); Alexandru v. Dowd, 79 Conn.App. 434, 439, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003); McManus v. Sweeney, 78 Conn.App. 327, 334, 827 A.2d 708 (2003); see also 3 Restatement (Second), Torts § 619(1), p. 316 (1977).
The plaintiff contends that absolute immunity does not bar claims of fraud and intentional infliction of emotional distress against attorneys because those torts, like the tort of vexatious litigation, for which attorneys are not afforded such protection, have built-in safeguards against the use of litigation as a weapon to chill the vigorous advocacy expected in an adversarial system of justice. The plaintiff also argues that no previous decision of this court has granted attorneys absolute immunity for the type of fraudulent conduct alleged in the present case, which consists of omissions and misrepresentations during a court proceeding, and that nothing in the public policy of this state, as articulated in this court's decisions, precludes the imposition of liability on attorneys who engage in such misconduct.
The defendants respond that the litigation privilege extends to statements made in pleadings or other documents prepared in connection with judicial proceedings, that Connecticut courts previously have applied the doctrine of absolute immunity when claims of intentional infliction of emotional distress have been filed against attorneys, and that the courts never have suggested that other tortious claims against attorneys would not be similarly barred under the immunity doctrine. The defendants also contend that fraud claims lack sufficient, built-in safeguards to eliminate the need for absolute immunity as a
We begin with the historical antecedents of the litigation privilege, which developed in the context of defamation claims, in order to determine whether the public policies that justify the privilege with respect to defamatory statements also justify the privilege with respect to claims of fraud and intentional infliction of emotional distress. Absolute immunity for defamatory statements made in the course of judicial proceedings has been recognized by common-law courts for many centuries and can be traced back to medieval England. T. Anenson, "Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers," 31 Pepp. L.Rev. 915, 918 (2004). "The privilege arose soon after the Norman Conquest and the introduction of the adversary system," and has been deemed "as old as the law" itself. (Internal quotation marks omitted.) Id., at 918-19. The rationale articulated in the earliest privilege cases was the need to bar persons accused of crimes from suing their accusers for defamation. P. Hayden, "Reconsidering the Litigator's Absolute Privilege to Defame," 54 Ohio St. L.J. 985, 1013-15 (1993). Thus, an English court determined in 1497 that an action for "scandalum magnatum," or slander, would not lie against a peer accused of forgery whose case was still pending because "no punishment was ever appointed for a suit in law, however it be false, and for vexation." Beauchamps v. Croft, 73 Eng. Rep. 639 (Q.B.1497).
The first reported decision dismissing an action against an attorney on the ground of privilege was issued in 1606. T. Anenson, supra, 31 Pepp. L.Rev. at 919. In Brook v. Montague, 79 Eng. Rep. 77 (K.B. 1606), in which the defendant attorney was accused of slandering his client's adversary by stating in open court at a previous trial that the plaintiff had been convicted of a felony, the court concluded that "a counsellor in law retained hath a privilege to enforce any thing which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false...." Id.
The principle was reiterated numerous times by English courts, sometimes without regard to whether the defamatory statements were relevant to the issue in dispute. See, e.g., Dawkins v. Lord Rokeby, 8 L.R.Q.B. 255, 263 (1873) ("[t]he authorities [are] clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law"); Hodgson v. Scarlett, 171 Eng. Rep. 362, 363 (C.P.1817) ("[N]o action can be maintained for words spoken in judicial proceedings.... It is necessary to the due administration of justice, that counsel should be protected in the execution of their duty in [c]ourt; and that observations made in the due discharge of that duty should not be deemed actionable."); Rex v. Skinner, 98 Eng. Rep. 529, 530 (K.B.1772) ("[N]either party, witness, counsel, jury, or [j]udge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to the case,
Almost 300 years after Brook, the privilege was described in Munster v. Lamb, 11 Q.B.D. 588, 599 (1883), as including all defamatory language, even if lacking in relevancy to the disputed issues or motivated by malice or misconduct. The court reasoned that "counsel has a special need to have his mind clear from all anxiety.... What he has to do, is to argue as best he can ... in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness.... The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct.... With regard to counsel, the questions of malice, bona fides, and relevancy, cannot be raised; the only question is, whether what is complained of has been said in the course of the administration of the law. If that be so, the case against a counsel must be stopped at once." at Id., at 603-605.
Although early American courts relied on the English common-law privilege cases; see, e.g., Hoar v. Wood, 44 Mass. (3 Met.) 193, 195, 198 (1841); Mower v. Watson, 11 Vt. 536, 540-41 (1839); see also M'Millan v. Birch, 1 Binn. 178, 184-85 (Pa.1806) (relying on English common law without citing cases); most courts rejected the explicit broadening of the privilege in Munster, which continues to be the rule in contemporary England. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 114, pp. 817-18. Thus, for example, in Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505 (1888), the Maryland Court of Appeals concluded that, although it could not accept the absolute and unqualified privilege laid down in Munster for matters not relevant to the subject of the inquiry, words relevant to matters in dispute fell "strictly within the rule of privilege and whether they were true or false, or whether they were spoken maliciously or in good faith, [were] questions altogether immaterial, [and] being privileged, no action [would] lie against the defendant." Id., at 164, 14 A. 505.
The principle that defamatory statements by attorneys during judicial proceedings are absolutely privileged when they are pertinent and material to the
Three rationales have been articulated in support of the absolute privilege. See T. Anenson, supra, 31 Pepp. L.Rev. at 922. First, and most important, it "protects the rights of clients who should not be imperiled by subjecting their legal advisors to the constant fear of lawsuits arising out of their conduct in the course of legal representation. The logic is that an attorney preparing for litigation must not be hobbled by the fear of reprisal by actions for defamation ... which may tend to lessen [counsel's] efforts on behalf of clients." (Internal quotation marks omitted.) Id. This includes protection from intrusive inquiries into the motives behind an attorney's factual assertions; see P. Hayden, supra, 54 Ohio St. L.J. at 1004; and, in the case of alleged omissions or the concealment of evidence, from having to resist or defend against attempts to uncover information that arguably could have been produced at trial but might be subject to the attorney-client privilege. Second, the privilege furthers "the administration of justice by preserving access to the courts. If parties could file retaliatory lawsuits and cause the removal of their adversary's counsel on that basis, the judicial process would be compromised." T. Anenson, supra, at 923-24. Third, there are remedies other than a cause of action for damages that can be imposed by the court under court rules, the court's inherent contempt powers and the potential for disciplinary proceedings through state and local bar associations. Id., at 925. Thus, the litigation privilege for defamatory statements has been fully embraced by American courts for substantially the same reasons articulated by English courts.
Like other jurisdictions, Connecticut has long recognized the litigation privilege. In
Since Blakeslee, this court frequently has acknowledged the privilege. See, e.g., Hassett v. Carroll, 85 Conn. 23, 35-36, 81 A. 1013 (1911) ("The publication of defamatory words may be under an absolute, or under a qualified or conditional, privilege. Under the former there is no liability, although the defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of [s]tate. One publishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice."); Petyan v. Ellis, supra, 200 Conn. at 245-46, 510 A.2d 1337 ("There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.... The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." [Citation omitted; internal quotation marks omitted.]); Mozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171 (1987) ("we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings"); Hopkins v. O'Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007) ("[i]t is well settled that [defamatory] communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy" [internal quotation marks omitted]); Rioux v. Barry, supra, 283 Conn. at 344, 927 A.2d 304 ("[w]e consistently have held that absolute immunity bars defamation claims that arise from statements made in the course of judicial or quasi-judicial hearings"); Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007) ("[i]t is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy" [internal quotation marks omitted]).
Connecticut courts have adopted the privilege for all of the same reasons articulated by courts in other jurisdictions. In Blakeslee, the court explained that the privilege was "founded upon the principle that in certain cases it is advantageous for the public interest that persons should not be in any way fettered in their statements, but should speak out the whole truth, freely and fearlessly." (Internal quotation marks omitted.) Blakeslee & Sons v. Carroll, supra, 64 Conn. at 232, 29 A. 473. The court described the privilege as being rooted in the public policy that "a judge in dealing with the matter before him, a party in preparing or resisting a legal proceeding, [or] a witness in giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel."
One century later, the court in Rioux similarly declared: "The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.... [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint.... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state.... As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Citations omitted; internal quotation marks omitted.) Rioux v. Barry, supra, 283 Conn. at 343-44, 927 A.2d 304; see also Petyan v. Ellis, supra, 200 Conn. at 246, 510 A.2d 1337 ("[t]he policy underlying the [absolute] privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements" [internal quotation marks omitted]).
This jurisdiction also has recognized the importance of access to the courts and the existence of remedies other than lawsuits as reasons for granting absolute immunity to attorneys for making allegedly defamatory statements. See Mozzochi v. Beck, supra, 204 Conn. at 494-95, 529 A.2d 171 ("[b]ecause litigants cannot have [unfettered] access [to our courts] without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings"); cf. DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991) ("While no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness' statements.
In recent decades, Connecticut attorneys have tested the limits of the privilege with respect to alleged misconduct other than defamatory statements during judicial proceedings, with mixed results. In Mozzochi, an abuse of process case, this court determined that attorneys are not protected by absolute immunity against claims alleging the pursuit of litigation for the unlawful, ulterior purpose of inflicting injury on the plaintiff and enriching themselves and their client, despite knowledge that their client's claim lacked merit, because such conduct constituted the use of legal process in an improper manner or primarily to accomplish a purpose for which it was not designed. Mozzochi v. Beck, supra, 204 Conn. at 491-92, 494, 529 A.2d 171. The court nevertheless sought to reconcile its responsibility to ensure unfettered access to the courts and to avoid a possible chilling effect on would-be litigants of justiciable issues by limiting liability to situations in which the plaintiff "can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney's primary duty of robust representation of the interests of his or her client." Id., at 497, 529 A.2d 171; see also Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772-76, 802 A.2d 44 (2002) (recognizing abuse of process claim against counsel); DeLaurentis v. New Haven, supra, 220 Conn. at 264, 597 A.2d 807 (same).
This court also has determined that absolute immunity does not bar claims against attorneys for vexatious litigation or malicious prosecution. With respect to vexatious litigation, the court in Mozzochi explained that it previously had "assumed, without discussion [in Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978)], that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation." Mozzochi v. Beck, supra, 204 Conn. at 495, 529 A.2d 171. Twenty years later, the court in Rioux expressly permitted a claim for vexatious litigation against defendants who were not attorneys but who claimed absolute immunity as members of the state police for allegedly false statements they had made in the course of a quasi-judicial proceeding. See Rioux v. Barry, supra, 283 Conn. at 341-43, 348-49, 927 A.2d 304. The court reasoned that, "whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests"; id., at 346, 927 A.2d 304; and "the fact that the tort of vexatious litigation itself employs a test that balances the need to encourage complaints against the need to protect the injured party's interests
The court in Rioux concluded, however, that absolute immunity did bar the plaintiff's claim of intentional interference with contractual or beneficial relations.
Similarly, this court has found no basis for a claim of intentional infliction of emotional distress arising out of a privileged communication consisting of a defamatory statement made in the course of a quasi-judicial proceeding. See Petyan v. Ellis, supra, 200 Conn. at 245, 254, 510 A.2d 1337. In reaching this conclusion, the court in Petyan cited an amended version of § 46 of the First Restatement of Torts; see A.L.I., Restatement of the Law (Torts) § 46, p. 612 (Sup.1948); which provided in relevant part that "[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily injury resulting from it." (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, supra, at 254, 510 A.2d 1337, quoting A.L.I., supra, at § 46, p. 612. The court explained: "Although... § 46 [of the Restatement (Second) of Torts] does not contain the same reference to privilege, the issue of privilege, in the context of the intentional infliction of emotional distress, is discussed in comment (g) [of the Restatement (Second)]: `The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.' Since the defendant [in Petyan] had an absolute privilege to [make the statements at issue], she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress." (Emphasis added.) Petyan v. Ellis, supra, at 254-55, 510 A.2d 1337. In DeLaurentis v. New Haven, supra, 220 Conn. at 264, 597 A.2d 807, this court further concluded that statements made in pleadings and in court cannot independently form the basis for a cause of action alleging intentional infliction of emotional distress.
Against this legal backdrop, we turn to the plaintiff's contention that the defendants are not protected by the litigation privilege against a claim of fraud. We are guided by the principle that the issue of whether to recognize a common-law cause of action in fraud "is a matter of policy for the court to determine" based on competing social concerns. See Craig v. Driscoll, 262 Conn. 312, 339, 813 A.2d 1003 (2003); see also Rioux v. Barry, supra, 283 Conn. at 346, 927 A.2d 304. We are also mindful, in making this determination, that the law of torts generally, and the tort of fraud especially, like the tort of defamation, involve competing public policy considerations that must be thoroughly evaluated. See, e.g., Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 216, 837 A.2d 759 (2004). Having completed an evaluation of these considerations and of the parties' arguments, we conclude that the Appellate Court correctly determined that attorneys are shielded by the litigation privilege from claims of fraud. We reach this conclusion because fraudulent conduct by attorneys, while strongly discouraged, (1) does not subvert the underlying purpose of a judicial proceeding, as does conduct constituting abuse of process and vexatious litigation, for which the privilege may not be invoked, (2) is similar in essential respects to defamatory statements, which are protected by the privilege, (3) may be adequately addressed by other available remedies, and (4) has been protected by the litigation privilege in federal
First, to the extent this court has barred attorneys from relying on the litigation privilege with respect to claims alleging abuse of process and vexatious litigation, those claims are distinguishable from claims alleging defamation and fraud because they challenge the underlying purpose of the litigation rather than an attorney's role as an advocate for his or her client. See Barrett v. United States, 798 F.2d 565, 573 (2d Cir.1986) (articulating functional approach in concluding that "[t]he fact that [the assistant attorney general defending the state of New York in a wrongful death action] may or may not have engaged in questionable or harmful conduct during the course of his representation of the [s]tate in [the] litigation is irrelevant" and that "[t]he immunity attaches to his function, not to the manner in which he performed it"). Specifically, abuse of process claims must allege the improper use of litigation "to accomplish a purpose for which it was not designed." Mozzochi v. Beck, supra, 204 Conn. at 494, 529 A.2d 171. Likewise, vexatious litigation claims must allege, inter alia, that the defendant acted primarily for a purpose other than that of bringing an offender to justice and without probable cause. E.g., Rioux v. Barry, supra, 283 Conn. at 347, 927 A.2d 304. In contrast, a claim of fraud, including the claim that the defendants in the present case deliberately concealed material evidence from the plaintiff and incorrectly portrayed the plaintiff's former spouse as economically disadvantaged, does not require consideration of whether the underlying purpose of the litigation was improper but, rather, whether an attorney's conduct while representing or advocating for a client during a judicial proceeding that was brought for a proper purpose is entitled to absolute immunity. Consequently, this court's reasons for precluding use of the litigation privilege in cases alleging abuse of process and vexatious litigation have no application to claims of fraud.
Second, a claim of fraud is similar to a claim of defamation. "A defamation action is based on the unprivileged communication of a false statement that tends either to harm the reputation of another by lowering him or her in the estimation of the community or to deter others from
"The essential elements of an action in common law fraud ... are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.... [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).
As indicated by this comparison, claims of defamation and fraud during a judicial proceeding contemplate allegations that a party suffered harm because of a falsehood communicated by the opponent's attorney, namely, the publication of a false statement that harms the other party's reputation in the case of defamation, and a false representation made as a statement of fact that induces the other party to act to his detriment in the case of fraud. Commentators have observed that, "because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant." (Emphasis added.) 3 R. Mallen & J. Smith, Legal Malpractice (2010) § 22:8, pp. 185-86; accord P. Hayden, supra, 54 Ohio St. L.J. at 998. Accordingly, because the communication of a falsehood is an essential element of both defamation and fraud, the litigation privilege provides a complete defense to both causes of action. See 3 R. Mallen & J. Smith, supra, § 22:8, at pp. 186-87.
Moreover, the required elements of fraud, like the required elements of defamation and interference with contractual or beneficial relations that the court discussed in Rioux, do not provide the same level of protection against the chilling effects of a potential lawsuit as the required elements of vexatious litigation. As we previously have observed, a claim of vexatious litigation requires proof that the plaintiff was the defendant in a prior lawsuit decided in his favor and that the lawsuit was commenced without probable cause and for an improper purpose. See, e.g., Rioux v. Barry, supra, 283 Conn. at 347, 927 A.2d 304. These requirements establish a very high hurdle that minimizes the risk of inappropriate litigation while still providing an incentive to report wrongdoing, thus protecting "the injured party's interest in being free from unwarranted litigation." Id. The clear and convincing burden of proof required for a claim of fraud, however, is not an equivalent safeguard, and we do not agree with those who argue that this heightened standard alone would reduce the risk of retaliatory litigation to
Claims of defamation and fraud are also similar because they are difficult to prove but easy for a dissatisfied litigant to allege. English and American authorities have explained that attorneys are entitled to absolute immunity for allegedly defamatory statements in part because of the difficulty of ascertaining their truth. Lord Penzance specifically referred to this problem in Dawkins when he stated with respect to the allegedly defamatory statements of a witness: "If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man.
"But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can ... be resolved [only] by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expense and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands." Dawkins v. Lord Rokeby, supra, at 7 L.R.-E. & I.App. 755-56.
The same logic applies to an attorney's evidentiary strategy and representations during a judicial proceeding. A claim of fraud requires not only that the representation be untrue, but that it was known to be untrue at the time it was made and that it was intended to induce the other party to act. E.g., Sturm v. Harb Development, LLC, supra, 298 Conn. at 142, 2 A.3d 859. Yet, because opinions might differ on those questions, allowing them to be submitted to a jury could have all of the deleterious effects described in Dawkins, including judgments against innocent attorneys. Moreover, it would be relatively easy to file a spurious claim of fraud because attorneys must be selective in deciding what information to disclose in the course of representing their clients and a litigant could well believe that undisclosed information later discovered to have been in the attorney's possession should have been disclosed, thus giving rise to a claim of fraud based on misrepresentation. Finally, the mere possibility of such claims, which could expose attorneys to harassing and expensive litigation,
Third, safeguards other than civil liability exist to deter or preclude attorney misconduct or to provide relief from that misconduct. A dissatisfied litigant may file a motion to open the judgment; see, e.g., Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983) ("a judgment ... may be subsequently opened if it is shown that [it] was obtained by fraud or intentional material misrepresentation"); or may seek relief by filing a grievance against the offending attorney under the Rules of Professional Conduct, which may result in sanctions such as disbarment. See, e.g., Rules of Professional Conduct 8.4(3) (it is professional misconduct for lawyer to "[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation"); see also Burton v. Mottolese, 267 Conn. 1, 59, 835 A.2d 998 (2003) (upholding trial court's order disbarring plaintiff from practice of law for conduct that included misrepresentations of material fact), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004). Additionally, "[j]udges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline members of the bar." (Internal quotation marks omitted.) Statewide Grievance Committee v. Presnick, 215 Conn. 162, 166, 575 A.2d 210 (1990). "In exercising their inherent supervisory authority, the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause.... Further, the judges have empowered the statewide grievance committee to file presentments in Superior Court
Fourth, in civil rights actions filed under 42 U.S.C. § 1983,
"Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor.... Frequently acting under serious constraints of time and even information, a prosecutor inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials." (Citations omitted.) Imbler v. Pachtman, supra, 424 U.S. at 424-26, 96 S.Ct. 984. The court acknowledged that absolute immunity "does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." Id., at 427-28, 96 S.Ct. 984. The court agreed with Judge Learned Hand, who, in writing about prosecutorial immunity from actions for malicious prosecution, stated that, "[a]s is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." (Internal quotation marks omitted.) Id., at 428, 96 S.Ct. 984 quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949)
We finally note, with respect to decisions of the federal courts, that the United States District Court for the District of Connecticut recently relied on Connecticut law in determining that a state law claim against an attorney under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., alleging, inter alia, false and misleading statements during a debt collection proceeding, could not succeed because the attorney was protected by the common-law litigation privilege. See Walsh v. Law Offices of Howard Lee Schiff, United States District Court, Docket No. 3:11-cv-1111 (SRU), 2012 WL 4372251 (D.Conn. September 24, 2012). According to the complaint in Walsh, the attorney had "made multiple false, deceptive, and/or misleading representations in the course of litigating the [a]ction," including "fabricated documents" and a "false affidavit...." (Internal quotation marks omitted.) Id. The court observed, however, that "[i]t is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy.... The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." (Internal quotation marks omitted.) Id., citing Alexandru v. Strong, 81 Conn.App. 68, 83, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004), and Hopkins v. O'Connor, supra, 282 Conn. at 838, 925 A.2d 1030. The court noted that, "[a]lthough few courts have considered the litigation privilege in the context of CUTPA claims, those that have had occasion to do so have upheld the application of absolute immunity." Walsh v. Law Offices of Howard Lee Schiff, supra. The court thus concluded that, because "all of the alleged[ly] false communications were made by an attorney in the course of the underlying lawsuit on issues pertinent to the controversy," they were protected by an absolute privilege. Id. This recent precedent, like other well established federal precedent, weighs in favor of applying the privilege to state law claims alleging fraud.
To the extent the plaintiff, the concurrence and the Connecticut Chapter of the American Academy of Matrimonial Lawyers, which filed an amicus brief, argue that applying the litigation privilege to claims of fraud will not encourage candor and will shield misconduct, it is true that attorneys who engage in fraud during judicial proceedings will not be subject to civil actions seeking damages. Nevertheless, as both the English and American
We acknowledge that at least twelve jurisdictions have abrogated the litigation privilege for claims of fraud by enacting statutes for that purpose. See Ark.Code Ann. § 16-22-310 (1999); Cal. Civ.Code § 47 (Deering 2005); Ind.Code Ann. § 33-43-1-8 (LexisNexis 2012); Iowa Code Ann. § 602.10113 (West 1996); Minn. Stat. Ann. § 481.07 (West 2002); Mont. Code Ann. § 37-61-406 (2011); N.Y. Jud. Law § 487 (McKinney 2005); N.C. Gen. Stat. Ann. § 84-13 (West 2011); N.D. Cent.Code § 27-13-08 (2006); Okla. Stat. Ann. tit. 21, § 575 (West 2002); S.D. Codified Laws § 16-19-34 (2004); Wyo. Stat. Ann. § 33-5-114 (2011); see also Matsuura v. E.I. du Pont de Nemours & Co., 102 Haw. 149, 162, 73 P.3d 687 (2003). In contrast to these jurisdictions, the Connecticut legislature, like more than thirty-five other state legislatures, has not chosen to follow a similar path.
We finally observe that abrogation of the litigation privilege to permit claims of fraud could open the floodgates to a wave of litigation in this state's courts challenging an attorney's representation, especially in foreclosure and marital dissolution actions in which emotions run high and there may be a strong motivation on the part of the losing party to file a retaliatory lawsuit. Abrogation of the privilege also would apply to the claims of pro se litigants who do not understand the boundaries of the adversarial process and thus could give rise to much unnecessary and harassing litigation. We therefore conclude that the Appellate Court properly determined that attorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings.
In light of our conclusion in part III of this opinion, we also conclude that the Appellate Court properly rejected the plaintiff's claim of intentional infliction of emotional distress, which is derivative of his claim of fraud. Footnote 2 of this opinion; see DeLaurentis v. New Haven, supra, 220 Conn. at 264, 597 A.2d 807 (attorneys protected by litigation privilege from independent action alleging intentional infliction of emotional distress due to statements made in pleadings or in court); Petyan v. Ellis, supra, 200 Conn. at 255, 510 A.2d 1337 (claim of intentional infliction of emotional distress precluded if based on privileged conduct). Accordingly, we need not reach the defendants' alternative grounds for affirmance of the Appellate Court's judgment.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C.J., and NORCOTT and VERTEFEUILLE, Js., concurred.
EVELEIGH, J., concurring.
I agree with the majority that the judgment of the Appellate Court should be affirmed. I write separately because, in my view, we should not have a bright line rule of absolute immunity in cases of this nature. I would require a finding of fraud or dishonesty to be made by the trial court on a motion for sanctions, or a similar finding of misconduct to be made by the statewide grievance committee pursuant to rule 8.4(3) of the Rules of Professional Conduct, before allowing a separate action against an attorney. By requiring such a finding, the attorney would have an opportunity to argue and present evidence at a hearing prior to the ruling of a court or tribunal. I would not, however, allow such an action in the present case because the trial court was acting on a motion for modification of alimony and not a motion for sanctions. Given this procedural posture,
I agree with the facts and procedural history set forth in the majority opinion. I also agree with the majority that "[t]he standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.... Jarmie v. Troncale, 306 Conn. 578, 583, 50 A.3d 802 (2012). Additionally, whether attorneys are protected by absolute immunity for their conduct during judicial proceedings is a question of law over which our review is plenary. See, e.g., Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009); Alexandru v. Dowd, 79 Conn.App. 434, 439, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003); McManus v. Sweeney, 78 Conn.App. 327, 334, 827 A.2d 708 (2003); see also 3 Restatement (Second) Torts § 619(1), p. 316 (1977)." (Internal quotation marks omitted.)
The question of whether to extend absolute immunity to attorneys for statements and representations made during judicial proceedings requires us to examine the public policy considerations behind absolute immunity. See Rioux v. Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007). The underlying public policy that is furthered by absolute immunity is to "encourag[e] participation and candor in judicial and quasi-judicial proceedings." (Internal quotation marks omitted.) Id., at 344, 927 A.2d 304. Thus, affording a party absolute immunity promotes honesty and candor by protecting that party from retaliatory actions for statements made during judicial proceedings. See Petyan v. Ellis, 200 Conn. 243, 252-53, 510 A.2d 1337 (1986) (libel and intentional infliction of emotional distress claims against defendant for statements made to state labor department barred by absolute immunity). Absolute immunity, however, has not been conferred in every circumstance in which it has been sought. See, e.g., Rioux v. Barry, supra, at 343, 927 A.2d 304 (absolute immunity does not bar vexatious litigation claim); Mozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171 (1987) (absolute immunity does not bar claim of abuse of process against attorney if plaintiff alleges attorney engaged in specific misconduct intended to cause specific injury outside of normal contemplation of private litigation); McHale v. W.B.S. Corp., 187 Conn. 444, 447-48, 446 A.2d 815 (1982) (absolute immunity does not bar malicious prosecution claim). Rather, courts extend absolute immunity to a defendant only in those situations where "the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Rioux v. Barry, supra, at 343, 927 A.2d 304. Indeed, "absolute immunity is of a `rare and exceptional character.'" Barrett v. United States, 798 F.2d 565, 571 (2d Cir.1986), quoting Cleavinger v. Saxner,
In those situations where there are sufficient safeguards in place to protect the defendant from false and malicious claims, courts have declined to extend absolute immunity. For example, this court has refused to extend absolute immunity to protect a defendant from a vexatious litigation claim. In Rioux v. Barry, supra, 283 Conn. at 340-42, 927 A.2d 304, the plaintiff brought claims for vexatious litigation and intentional interference with contractual relations against the defendants for allegedly making false statements in an attempt to get the plaintiff fired. In declining to attach absolute immunity to the statements that provided the basis for the tort of vexatious litigation, this court stated that the elements of the tort of vexatious litigation provide sufficient protection to defendants who make complaints or statements in good faith. Id., at 346-47, 927 A.2d 304. Specifically, we noted that "[v]exatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor." Id., at 347, 927 A.2d 304. If the defendants acted in good faith, therefore, a vexatious litigation claim could not succeed against them. Thus, because the "stringent requirements" of vexatious litigation provided adequate protection to defendants from retaliatory actions, this court found it "unnecessary to apply an additional layer of protection to would-be litigants in the form of absolute immunity." Id., at 347-48, 927 A.2d 304. Conversely, this court did extend absolute immunity to bar the plaintiff's claims for intentional interference with contractual relations. Id., at 350, 927 A.2d 304. The court concluded that, because the elements of intentional interference with contractual relations did not provide the defendants with the same level of protection as the elements of vexatious litigation, absolute immunity was necessary to protect against "the chilling of a witness' testimony." Id., at 351, 927 A.2d 304.
Likewise, this court has also declined to extend absolute immunity to shield a defendant from a malicious prosecution claim. In McHale v. W.B.S. Corp., supra, 187 Conn. at 450, 446 A.2d 815, this court held that the elements of malicious prosecution provide immunity to a defendant "who in good faith, volunteers false incriminating information." This court concluded that judging the truthfulness of a defendant's statements retrospectively would "have a chilling effect on the willingness of a private person to undertake any involvement in the enforcement of criminal laws." Id. This court also stated, however, that immunity would not attach to a complaining witness who knowingly gives false information to law enforcement officers, on the ground that "knowingly present[ing]... false information necessarily interferes with the intelligent exercise of official discretion." Id., at 449, 446 A.2d 815. Thus, the court concluded that defendants who intentionally give false information to a law enforcement officer are not immune from an action for malicious prosecution, because those defendants do not need to be protected from retaliatory actions; rather, actions initiated against those defendants are meritorious and should be heard. Id., at 449-50, 446 A.2d 815.
Furthermore, other jurisdictions allow an attorney to be sued for fraudulent conduct that occurs during judicial proceedings. For example, in Slotkin v. Citizens Casualty Co. of New York, 614 F.2d 301, 304 (2d Cir.1979), cert. denied, 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980),
Additionally, Connecticut courts have long emphasized the need for full and
The majority concludes, however, that absolute immunity is needed in the present case to "protect the overwhelming number of innocent attorneys from unjust claims of fraudulent conduct." See footnote 24 of the majority opinion; I respectfully disagree. I do not believe that affording attorneys absolute immunity for knowingly making fraudulent statements during judicial proceedings would further the public policy of encouraging candor in the courtroom. To echo Judge Bishop, "logic dictates the opposite conclusion." Simms v. Seaman, 129 Conn.App. 651, 677, 23 A.3d 1 (2011) (Bishop, J., concurring and dissenting). Much like law enforcement officials, judges need to be presented with truthful information in order to arrive at a just and rational decision. Attorneys who knowingly and intentionally make false statements in court hinder, rather than advance, the administration of justice.
The majority asserts that "the mere possibility of such claims, which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore,
The majority states that "to the extent this court has barred attorneys from relying on the litigation privilege with respect to claims alleging abuse of process and vexatious litigation, those claims are distinguishable from claims alleging defamation and fraud because they challenge the underlying purpose of the litigation rather than an attorney's role as an advocate for his or her client. See Barrett v. United States, [supra, 798 F.2d at 573]...." I disagree with this proposition. In my view, a fraudulent statement presented to the court as the foundation for an action and a fraudulent statement proffered directly to the court by an attorney during the course of litigation are equally reprehensible.
The facts of Barrett v. United States, supra, 798 F.2d at 565, a case relied on by the majority, are distinguishable from those in the present case. Barrett involved a cause of action against government attorneys. The court in Barrett noted that "[a]bsolute immunity from liability has been accorded to a few types of government officials whose duties are deemed as a matter of public policy to require such protection to enable them to function independently and effectively, without fear or harassment." Id., at 571. Moreover, Barrett did not overrule Slotkin, another case from the Second Circuit, which expressly permits a cause of action against private attorneys. Slotkin v. Citizens Casualty Co. of New York, supra, 614 F.2d at 318. Similarly, I also disagree with the majority's reliance on 42 U.S.C. § 1983 and the absolute immunity enjoyed by some government officials and attorneys. We are not dealing with the actions of government officials in this case. Therefore, the same rationale does not apply.
Rule 8.4(3) of the Rules of Professional Conduct states that it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The wording of this rule, however, does not limit itself to actions either before or during trial. If, after due notice and an opportunity to be heard, an attorney has violated these standards, at any stage of the proceedings, a separate cause of action should exist against that attorney. We cannot condone bad behavior at any point. I am joining the result reached in this case, however, because the attorneys herein were never afforded an opportunity to be heard and defend themselves regarding the opinion expressed by the trial court concerning their actions.
The majority maintains that, because the causes of action of defamation and fraud are similar, we should not allow a separate action against an attorney for fraud when we do not allow one for defamation. The point remains, however, that there is one significant difference in the two causes of action. "[A]t common law, fraud must be proven by clear and convincing evidence." Stuart v. Stuart, 297 Conn. 26, 40, 996 A.2d 259 (2010). Whereas,
I share the majority's concern regarding the potential chilling effect of frivolous actions against attorneys. For this reason, I have proposed a standard which, in my view, surpasses the safeguards that we have approved in allowing a vexatious litigation claim against attorneys. As indicated previously, I would require a finding of fraud or dishonesty to be made by the trial court on a motion for sanctions or a similar finding of misconduct to be made by the statewide grievance committee pursuant to rule 8.4(3) of the Rules of Professional Conduct before allowing a party to maintain a separate cause of action against an attorney. I believe that the paucity of such events would provide an adequate safeguard against frivolous actions and protect against the "mere possibility of such claims, which could expose attorneys to harassing and expensive litigation...."
The majority also points to the fact that "safeguards other than civil liability exist to deter or preclude attorney misconduct or to provide relief from that misconduct." The majority appropriately points to such options as: (1) a motion to open the judgment; (2) a grievance against the offending attorney; (3) judicial sanctions; (4) reprimand; (5) restitution; (6) assessment of costs; (7) return of a file to a client; (8) continuing legal education; (9) periodic audits; (10) medical treatment; (11) suspension; (12) disbarment; (13) attorney's fees; and (14) disciplinary sanctions for perjury or contempt. I agree with the majority on all of these points. My concern, however, is that there may be cases of this nature in which the injured party is not fully compensated for losses occasioned by the dishonesty of opposing counsel. It may be true that a court may order the attorney to pay, as sanctions, costs and attorney's fees. It is doubtful, however, that the court would order compensation in the form of lost income that may be alleged in a separate civil action. To the contrary, I would allow a cause of action wherein the complaining party was not fully compensated through the issuance of sanctions by the court. As an example, I use a variation on the facts of Slotkin v. Citizens Casualty Co. of New York, supra, 614 F.2d at 304. In Slotkin, the attorney had wrongfully disclosed an inaccurate insurance policy limit. Id. What if the case had been tried for ten weeks and then settled based on the inaccurate policy information? In my view, a court acting on a motion for sanctions in such a case, under the majority's approach, would be unlikely to award damages to the deceived party for any time lost from work. In the event a party does not receive full compensation for such injuries, I believe that she or he should have a right to bring a separate action against the offending attorney.
I reiterate that my disagreement with the majority is not great. I would allow a separate action only in a very narrow class of cases that may arise during the course of any given year. There is not, as the majority states, a "`constant dread of retaliation'" for the honest attorney. Further, in my view, the entire bar would not suffer adverse consequences as a result of the narrow exception to absolute privilege that I propose.
Moreover, in addition to the safeguard of conditioning a fraud claim on a specific finding of fraud made by the trial court on a motion for sanctions or made by the statewide grievance committee after a disciplinary hearing, the elements of the tort
Therefore, there would be two distinct safeguards in place to protect attorneys from frivolous claims and minimize the risk of retaliatory litigation: (1) a threshold requirement that such causes of action be supported by a specific finding from the lower court or statewide grievance committee that the attorney has engaged in fraud or dishonesty in the underlying action to survive a motion to strike; and (2) the element of the tort of fraud that requires an attorney to act with the knowledge that his or her representation was untrue in order to be held liable. An attorney who engages in conduct that prompts the trial court in the underlying proceeding to make a specific finding of fraud, and who is then — in a separate action — found by a jury to have committed fraud, should not be entitled to absolute immunity. In my view, the policy underlying absolute immunity counsels strongly against protecting an attorney in this situation.
For the reasons stated previously, I respectfully concur in the majority's decision to affirm the judgment of the Appellate Court affirming the trial court's judgment for the defendants. I do agree, however, with the Connecticut Chapter of the American Academy of Matrimonial Lawyers, which filed an amicus brief in this matter and stated therein: "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 the public who relies on the ethical underpinnings of the legal system. Such a ruling would have a particularly pernicious effect on proceedings in a family court, where each party is so dependent on proper disclosure by the other." See Billington v. Billington, supra, 220 Conn. at 218, 595 A.2d 1377.
In my view, requiring a finding of fraud or dishonesty from the trial court or the statewide grievance committee would provide an adequate safeguard against frivolous
Accordingly, I respectfully concur.
PALMER, J., dissenting.
The issue in this case is whether attorneys should be granted absolute immunity from claims of civil fraud stemming from their conduct during judicial proceedings. Although I agree that the importance of vigorous representation of and fidelity to one's clients warrants protecting an attorney from the threat of baseless retaliatory claims, I disagree with the majority that absolute immunity is necessary to achieve that end with respect to claims of fraud. In my view, such claims should be permitted if the plaintiff first seeks relief in the underlying proceeding or files a grievance complaint against the offending attorney and, in connection therewith, secures either a sanction against the attorney or a finding of attorney misconduct. This limited immunity is sufficient to protect attorneys against the threat of frivolous, retaliatory litigation, on the one hand, and provides a fair opportunity for recovery by a party who has been defrauded by opposing counsel, on the other.
The majority's decision to extend the litigation privilege to attorney fraud is out of step with 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. Moreover, the majority ignores the strong presumption against absolute immunity and dismisses the preferred option of limited immunity without analysis or justification. Finally, because no legitimate purpose is served by granting attorneys absolute litigation immunity rather than limited immunity, the majority's decision rightly will be viewed — by nonlawyers especially — as unduly protectionist of attorneys. Applying the limited immunity that I propose, I would conclude that the plaintiff, Robert Simms, should be permitted to pursue his claim that, during the proceedings on his motion for modification of alimony, the defendants Penny Q. Seaman, Susan A. Moch, Kenneth J. Bartschi, Brendon P. Levesque and Karen L. Dowd fraudulently did not disclose the fact that the plaintiff's former spouse, Donna Simms,
This court has long held that absolute immunity bars defamation and related claims arising out of statements made in the course of judicial or quasi-judicial proceedings.
As this court repeatedly has recognized, however, absolute immunity is such "strong medicine ... [that] not every category of persons protected by immunity [is] entitled to absolute immunity. In fact, just the opposite presumption prevails — categories of persons protected by immunity are entitled only to the scope of immunity that is necessary to protect those persons in the performance of their duties." (Emphasis added; internal quotation marks omitted.) Gross v. Rell, 304 Conn. 234, 247, 40 A.3d 240 (2012); accord Carrubba v. Moskowitz, 274 Conn. 533, 540-41, 877 A.2d 773 (2005). We employ this presumption against absolute immunity — the same presumption that the United States Supreme Court employs in determining whether absolute or limited immunity is appropriate in any given case; see, e.g., Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) — because absolute immunity provides a shield against meritorious claims no less than baseless ones. Consequently, this court has not barred all actions based on statements or conduct occurring during the course of litigation. Rather, "whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests." Rioux v. Barry, supra, 283 Conn. at 346, 927 A.2d 304.
Upon applying this balancing test, this court has concluded that absolute immunity does not apply to actions for abuse of process; Mozzochi v. Beck, supra, 204 Conn. at 495, 529 A.2d 171; vexatious litigation; Rioux v. Barry, supra, 283 Conn. at 348-49, 927 A.2d 304; or malicious prosecution. See McHale v. W.B.S. Corp., 187 Conn. 444, 450, 446 A.2d 815 (1982). In the case of each such tort, we concluded that the tort itself "has built-in restraints that minimize the risk of inappropriate [retaliatory] litigation." (Internal quotation marks omitted.) Rioux v. Barry, supra, at 348, 927 A.2d 304; accord Mozzochi v. Beck, supra, at 495, 529 A.2d 171. Specifically, the three torts require, as a prerequisite to suit, that the previous action had been terminated in the plaintiff's favor, and all three torts have stringent additional requirements that provide further protection against inappropriate retaliatory claims.
Conversely, this court has held that attorneys are absolutely immune from defamation claims arising out of their conduct in judicial proceedings because of the absence of any mechanism, inherent in the tort of defamation or otherwise, for distinguishing wholly groundless claims from potentially meritorious ones. See, e.g., Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). Although this means that even meritorious defamation claims are foreclosed, the fundamental policy concern underlying absolute immunity
As a general matter, fraud by an attorney is far more serious than defamation by an attorney.
It bears emphasis that blanket immunity for attorneys who commit fraud during the course of judicial proceedings raises serious policy concerns not implicated by other tortious conduct, including defamation. Such fraud not only victimizes the affected litigant, it also strikes at the heart of the judicial process. In recognition of the seriousness of attorney fraud, at least one dozen states have enacted statutes expressly renouncing any privilege for conduct during the course of a judicial proceeding when, as is alleged in the present case, an attorney engages in fraudulent misconduct in the course of that proceeding. See Ark.Code Ann. § 16-22-310 (1999); Cal. Civ.Code § 47 (Deering 2005); Ind.Code Ann. § 33-43-1-8 (LexisNexis 2012); Iowa Code Ann. § 602.10113 (West 1996); Minn.Stat. Ann. § 481.07 (West 2002); Mont.Code Ann. § 37-61-406 (2011); N.Y. Jud. Law § 487 (McKinney 2005); N.C. Gen.Stat. Ann. § 84-13 (West 2011); N.D. Cent.Code § 27-13-08 (2006); Okla. Stat. Ann. tit. 21, § 575 (West 2002); S.D. Codified Laws § 16-19-34 (2004); Wyo. Stat. Ann. § 33-5-114 (2011).
In addition to these statutory provisions, courts in other jurisdictions expressly have rejected the view that attorneys should be granted absolute immunity for fraud committed in a judicial proceeding. See, e.g., Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1373-74 (10th Cir.1991) ("[The] [p]laintiffs ... seek to hold [the defendant law firm] liable based [on] allegedly fraudulent statements in the course of discovery and at trial, but we cannot identify a common law precedent for absolute immunity on such claims. The claims asserted are not for defamation and [the defendant] cannot avail itself of the immunity afforded government lawyers responsible for vindicating the public interest.... [The defendant]
Notably, in its amicus brief, the Connecticut Chapter of the American Academy of Matrimonial Lawyers
The majority nevertheless summarily rejects limited or qualified immunity as an inadequate substitute for absolute immunity, reasoning that "attorneys would still be subject to a possibly significant increase in litigation because dissatisfied parties seeking to benefit financially may be more inclined to seek penalties from the court or the statewide grievance committee so that they may proceed with the civil action." Footnote 30 of the majority opinion. I disagree with the majority for several reasons. First, there is no reason to believe that, under the approach I propose, attorneys would be subject to any increase in the filing of motions for sanctions and grievance complaints, let alone a significant increase, and I submit that the majority's highly speculative assertion to the contrary is unsupported. Indeed, the majority itself acknowledges the speculative nature of its assertion in characterizing any potential increase in the number of such motions and complaints as only "possibly" significant. Id. Moreover, it seems apparent that most litigants who believe (1) that their legal interests have been compromised by the fraud or dishonesty of an adversary's counsel, and (2) that they can establish such fraud or dishonesty, are likely either to seek monetary sanctions, file a grievance, or both, irrespective of whether, if successful, they also would be permitted to pursue a civil action for fraud against the attorney.
More important, however, in raising the spectre of a possible increase in the number of such motions and complaints, the
Finally, in dismissing out of hand the option of limited immunity, the majority essentially ignores the competing interests, namely, the private interest of the plaintiff in receiving compensation for the harm attributable to the attorney's fraud, on the one hand, and the public interest in holding dishonest attorneys civilly accountable for their fraudulent misconduct, on the other. In failing to balance the relevant interests, the majority reaches a conclusion that is unfairly weighted in favor of attorneys alleged to have engaged in fraud and against litigants who may have been victimized by that fraudulent conduct. Absolute immunity is unnecessary, and therefore unwarranted, because limited immunity of the kind that I propose would provide attorneys with sufficient protection from the threat of baseless retaliatory actions and, at the same time, afford litigants a reasonable opportunity to obtain recourse against an attorney who has engaged in fraudulent misconduct during the course of a judicial proceeding.
Applying these principles to the present case is not altogether straightforward, in part because the history of the underlying matrimonial case is long and tortured, and in part because the parties have not litigated this case with those principles in mind. In any event, the record reveals that, in April, 2005, the plaintiff in the present case filed an amended motion for modification of alimony. In October, 2005, the trial court, Tierney, J., granted the motion upon finding a substantial change of circumstances. On appeal, this court concluded that, although the trial court properly had found a change of circumstances, the court abused its discretion with respect to the amount of the reduction, and, therefore, a new hearing was required. Simms v. Simms, 283 Conn. 494, 504, 509-10, 927 A.2d 894 (2007). At that hearing, the plaintiff alleged, inter alia, that his former spouse, Donna Simms, fraudulently had not disclosed, in connection with the 2005 hearing, that, as a named beneficiary of the will of her deceased uncle, she was about to receive a substantial, albeit as yet undetermined, inheritance. Following an evidentiary hearing on the plaintiffs motion, the trial court, Munro, J., found that counsel for Donna Simms knew of her impending inheritance at the time of the 2005 hearing but did not disclose that fact. The court further stated
Accordingly, I respectfully dissent.
The dissent summarily dismisses our determination that claims of fraud and defamation are similar in many essential respects, apparently concluding that their similarities are not as important as the fact that defamation claims, unlike claims of fraud, lack a scienter requirement and that the claims have different standards of proof. See footnote 6 of the dissenting opinion. We acknowledge those differences but find that they are far out-weighed by the considerations discussed at length in this opinion. Indeed, the scienter requirement in fraud cases, which makes proof so difficult and problematic, is one of the principal reasons why attorneys should be protected by the litigation privilege against the spurious claims of disgruntled parties who have lost in a prior action.
We also reject the dissent's contention that we "[understate] the gravity of the harm associated with attorney fraud," which the dissent contends is "significantly more serious than... defamation." Id. We make no judgment regarding the relative severity of the harm caused by attorney defamation versus fraud because a valid comparison cannot be made on the basis of general definitions but, rather, requires knowledge of specific facts and circumstances. In other words, an attorney's defamatory statements during trial proceedings could be equally or more damaging to an opposing party than an attorney's fraudulent withholding or concealment of a document. We thus find it more helpful to weigh and balance the competing interests and to consider the availability and effectiveness of alternative means for discouraging and punishing such misconduct than to focus on its relative severity as compared with other types of misconduct. See footnote 26 of this opinion.
We are also fully aware that the absolute immunity to which the court in Briscoe referred in stating that immunity applies to all participants in the court system is the immunity accorded to defamatory statements. See id. We cite Briscoe, however, to emphasize that, to the extent the privilege has been extended more recently to protect prosecutors against claims of fraud in § 1983 actions, it also should be extended to protect private attorneys against similar claims because they, like prosecutors, historically have been considered integral parts of the judicial process. Id.
The dissent also claims that the reasons federal courts have given for extending the litigation privilege to prosecutors in § 1983 actions do not apply to private attorneys, that the United States Supreme Court never has extended to private counsel the same expansive immunity it has accorded prosecutors and that, in any event, that court has concluded that absolute immunity does not apply to the intentional misconduct of public defenders. See footnote 8 of the dissenting opinion. We disagree with this reasoning. Although federal prosecutors have a unique role in judicial proceedings; see Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); most of the reasons why federal courts have granted absolute immunity to prosecutors apply with equal force to private attorneys. See, e.g., id., at 423, 427-28, 96 S.Ct. 984 (prosecutors are afforded absolute immunity in order to ensure that they are able to discharge their duty free from concerns of unfounded lawsuits by defendants displeased with their discretionary decisions and to protect them from harassment by unfounded litigation that will cause deflection of their energies from their duties). Moreover, the United States Supreme Court never has been presented with the question of whether to extend absolute immunity to private counsel against claims of fraud during judicial proceedings by persons who were not their clients, and, insofar as the dissent cites Tower v. Glover, 467 U.S. 914, 923, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984), for the proposition that the United States Supreme Court "expressly concluded that ... [absolute] immunity does not apply to the intentional misconduct of public defenders"; footnote 8 of the dissenting opinion; Tower is inapposite. The intentional misconduct at issue in Tower was not fraud, as defined under Connecticut law, but an alleged conspiracy between various state officials, including the trial and appellate court judges and the former attorney general of the state of Oregon, to secure the defendant's conviction in violation of his federal constitutional rights. Tower v. Glover, supra, at 916, 104 S.Ct. 2820. More importantly, the public defender in Tower was sued by his own client. See id. Accordingly, Tower has no relevance to the present case.
Most of the cases on which the concurrence relies are likewise inapplicable because the alleged misconduct did not occur during judicial proceedings or the defendants did not claim an absolute privilege. See, e.g., Slotkin v. Citizens Casualty Co. of New York, 614 F.2d 301, 307-309, 312-14 (2d Cir.1979) (misrepresentation occurred during judicial proceedings but no claim of absolute privilege raised), cert. denied, 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980); Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 235 (Colo. 1995) (claim involved conduct relating to business transaction before commencement of judicial proceedings); New York Cooling Towers, Inc. v. Goidel, 10 Misc.3d 219, 220, 222, 805 N.Y.S.2d 779 (2005) (claim involved conduct relating to termination of contract before commencement of judicial proceedings). Accordingly, the privilege issue raised in the present case never was addressed in the cases on which the concurrence relies.
With respect to Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1372-73 (10th Cir.1991), the Tenth Circuit Court of Appeals concluded that, although prosecutors and government attorneys defending civil actions have been granted absolute immunity with respect to claims of fraudulent conduct during judicial proceedings, there did not appear to be an analogous common-law tradition for private attorneys, and the court did not believe that the United States Supreme Court would extend absolute immunity without such a tradition. The United States Supreme Court, however, has stated in dictum — which the Tenth Circuit possibly overlooked — that the litigation privilege at common law protected all participants in the court system, including private attorneys, judges, government lawyers and witnesses. See Briscoe v. LaHue, supra, 460 U.S. at 335, 103 S.Ct. 1108.
To the extent the concurrence also relies on passages in the Restatement (Third) of the Law Governing Lawyers and a treatise on attorneys, neither passage addresses fraudulent conduct by attorneys during judicial proceedings. In his treatise, Edward M. Thornton's discussion of the litigation privilege, which does not include consideration of fraudulent conduct, is contained in chapter four; see 1 E. Thornton, Attorneys at Law (1914) §§ 75 through 76, pp. 118-22; whereas the passage on which the concurrence relies can be found in chapter fourteen, which covers liability generally. See id., § 284 et seq. Moreover, the concurrence quotes selectively from § 295 of chapter fourteen, omitting all references to the type of conduct contemplated, which does not include conduct during judicial proceedings other than abuse of process and groundless lawsuits. The entire passage provides as follows: "An attorney's liability does not end with being answerable to his client. He is also liable to third persons who have suffered injury or loss in consequence of fraudulent or tortious conduct on his part. Thus counsel are responsible where they have occasioned loss by wrongfully stopping goods in transitu, or directing the seizure and conversion of goods on attachment proceedings, or conspiring with arbitrators to obtain an unjust award, or for advising a justice of the peace to act in violation of the law, or for abuse of process, or for bringing groundless suits, or for any other unauthorized act by which third persons are injured, such as falsely pretending to act with authority from the client in making an agreement whereby rights were relinquished by the third person. But an attorney at law is not to be charged with participation in the evil intentions of his client merely because he acts as attorney for such client when charged with fraudulent intent, or when his acts have proved to be fraudulent. Where an attorney acts in good faith, and within the scope of his authority, he will be protected; but it is not necessary to show a conspiracy between the attorney and his client, since the attorney may so act under his general employment to enforce a legal claim, as to render himself alone liable for a malicious prosecution or arrest." (Emphasis altered.) Id., § 295, at pp. 523-25.
Similarly, § 51 of the Restatement (Third) of the Law Governing Lawyers, on which the concurrence relies, does not refer to fraudulent conduct during judicial proceedings but to an attorney's general duty of care to persons who are not clients. See 1 Restatement (Third), The Law Governing Lawyers § 51, pp. 356-57 (2000). The authorities on which the concurrence relies thus fail to support its assertion that an attorney may be sued for fraudulent conduct that occurs during judicial proceedings.
For a similar reason, we disagree with the conclusion of the concurrence that absolute immunity should not apply to claims of fraudulent conduct because there is "no conflict between an attorney's duty to provide zealous and robust representation to his or her client, and an attorney's duty to be `an officer of the legal system and a public citizen having special responsibility for the quality of justice.'" Rather, we believe that, if absolute immunity is not available, attorneys may feel constrained in advocating for their clients because of fears that their legitimate conduct may be misinterpreted as wrongful by dissatisfied parties and thus give rise to future lawsuits.
Furthermore, insofar as the dissent relies on these few cases and the twelve state statutes abrogating the privilege to conclude that "the vast majority of states that have addressed the issue have declined to extend the privilege to ... fraud," its conclusion is misleading because it is based on a lack of information regarding state legislatures that may have considered and rejected abrogation of the privilege. Furthermore, the dissent fails to indicate how many other jurisdictions, such as West Virginia; Clark v. Druckman, supra, 218 W.Va. at 434, 624 S.E.2d 864; have recognized the privilege judicially. The only conclusion that can be drawn from the very limited information available is that twelve state legislatures have declined to extend the privilege to claims of fraud, more than thirty-five state legislatures have not enacted limiting legislation and that, because only a few courts appear to have addressed the issue, no valid conclusions can be reached regarding any judicial trend.
For similar reasons, we reject the dissent's even lower standard, to the extent we can discern it, for allowing a civil claim of fraud to proceed against an attorney for alleged misconduct during judicial proceedings. At the outset of its opinion, the dissent states that "such claims should be permitted if the plaintiff first seeks relief in the underlying proceeding or files a grievance complaint against the offending attorney and, in connection therewith, secures either a sanction against the attorney or a finding of attorney misconduct." The dissent contends at the conclusion of its opinion, however, that a trial court's finding, as in the present case, that certain conduct was merely wrongful, without any attempt by the plaintiff to seek sanctions, a reprimand or a finding of misconduct by the statewide grievance committee, would be sufficient to permit a civil action for fraud against an attorney. We disagree with both views because the dissent fails to recognize, or even address, the compelling considerations to the contrary that we discuss herein and find persuasive.
Section 51 of the Restatement (Third) of the Law Governing Lawyers provides in relevant part:
I therefore cannot agree with the majority's assertion that "attempt[ing] to assess and compare the relative degree of harm caused by different types of misconduct is not very useful in determining whether the privilege should apply in the present case" because "virtually all claims of [tortious conduct] during judicial proceedings, including defamation, allege some kind of `serious or corruptive' effect on the judicial process...." Footnote 14 of the majority opinion. On the contrary, the seriousness of the tortious conduct is most relevant to the immunity question, and I believe it to be self-evident that fraud, and attorney fraud in particular, is especially, if not uniquely, corruptive of the judicial process. Insofar as the majority rejects the distinction between fraud and defamation in terms of the severity and harm of the conduct involved in each, that fact alone is sufficient to cast serious doubt on the validity of the majority's decision to adopt absolute immunity for attorney fraud.
Furthermore, as I explain more fully hereinafter, there is a mechanism for screening baseless fraud claims and no such mechanism for screening baseless defamation claims. In this important respect, fraud claims are far more similar to claims of abuse of process, vexatious litigation and malicious prosecution than they are to defamation claims. As I also discuss hereinafter, the majority dismisses this point with no meaningful analysis.
In granting prosecutors this expansive immunity, "the [c]ourt in Imbler declined to accord prosecutors only qualified immunity because, among other things, suits against prosecutors for initiating and conducting prosecutions could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the [s]tate's advocate ... lawsuits would divert prosecutors' attention and energy away from their important duty of enforcing the criminal law ... prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity... and potential liability would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system...." (Citations omitted; internal quotation marks omitted.) Burns v. Reed, supra, 500 U.S. at 485-86, 111 S.Ct. 1934 quoting Imbler v. Pachtman, supra, 424 U.S. at 425, 427-28, 96 S.Ct. 984. Contrary to the majority's assertion, the functional approach that the United States Supreme Court uses in affording prosecutors, as well as judges, grand jurors and witnesses, complete immunity — immunity that includes protection against claims of malicious prosecution — does not support the conclusion that attorneys are entitled to that broad immunity. In fact, it militates against that conclusion because the United States Supreme Court never has extended to private counsel the same expansive immunity that it has accorded prosecutors, whose special role in our justice system is readily distinguishable from that of private attorneys. See Burns v. Reed, supra, at 487, 111 S.Ct. 1934 ("[w]e have been quite sparing in our recognition of absolute immunity... and have refused to extend it any further than its justification would warrant" [citation omitted; internal quotation marks omitted]). Indeed, in Tower v. Glover, 467 U.S. 914, 923, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984), the court expressly concluded that the same immunity does not apply to the intentional misconduct of public defenders. In reaching this conclusion, the court explained that, even though public defenders may have certain responsibilities that are similar to those of a judge or prosecutor, at common law, privately retained defense counsel "would have benefited from immunity for defamatory statements made in the course of judicial proceedings" but not for intentional misconduct. Id., at 922, 104 S.Ct. 2820. Thus, as one federal appeals court has explained after carefully reviewing United States Supreme Court precedent on absolute immunity, "while absolute immunity might be afforded [to] government lawyers on these claims [of fraud during a judicial proceeding], such immunity is not available for a private law firm." Robinson v. Volkswagenwerk AG, supra, 940 F.2d at 1371. "While we recognize that prosecutors and government lawyers defending civil actions have been granted absolute immunity on similar claims, the cases do not support an analogous common law tradition for private lawyers." Id., at 1372-73. "[The] [p]laintiffs ... seek to hold [the defendant law firm] liable based [on] allegedly fraudulent statements in the course of discovery and at trial, but we cannot identify a common law precedent for absolute immunity on such claims. The claims asserted are not for defamation and [the law firm] cannot avail itself of the immunity afforded [to] government lawyers responsible for vindicating the public interest. We must conclude that [the law firm] is not entitled to absolute immunity for the [allegedly fraudulent] discovery and litigation statements contained in the plaintiffs' ... complaint." Id., at 1373-74. It is because of the clear and significant differences in the role of a public prosecutor and the role of a private attorney that the former is accorded complete immunity and the latter only limited immunity — differences that the United States Supreme Court and this court expressly have recognized in affording immunity to prosecutors from malicious prosecution claims; see, e.g., Imbler v. Pachtman, supra, at 422-24, 96 S.Ct. 984; Massameno v. Statewide Grievance Committee, 234 Conn. 539, 567, 663 A.2d 317 (1995); DeLaurentis v. New Haven, 220 Conn. 225, 242, 597 A.2d 807 (1991); but permitting such claims against other attorneys. If, as the majority asserts, "[t]he rationale for granting absolute immunity to ... prosecutors is the same as that employed in justifying the litigation privilege for private attorneys in defamation actions," either prosecutors would not be shielded from malicious prosecution claims or private attorneys would be accorded protection from such claims.
I note that the reasoning of the Hawaii Supreme Court in rejecting a claim that the litigation privilege barred an action for fraud committed during a judicial proceeding is instructive as to why so many states have reached the same conclusion, either judicially or statutorily. See Matsuura v. E.I. du Pont de Nemours & Co., supra, 102 Hawai`i at 162, 73 P.3d 687. That court reviewed the various relevant considerations, and, although it acknowledged that the history of the case before it "demonstrate[d] how collateral proceedings burden court resources and protract litigation"; id.; it nevertheless determined that, "given (1) the courts' objective of uncovering truth, (2) the injurious effect of fraud on the ability to test the evidence presented, (3) the preference for judgments on the merits, (4) [the] court's duty to discourage abusive litigation practices, and (5) the desire to encourage settlement ... the interests in (a) avoiding the chilling effect of collateral litigation, (b) reinforcing the finality of judgments, and (c) limiting collateral attacks on judgments are outweighed when fraud is alleged." Id. Accordingly, the court held that "a party is not immune from liability for civil damages based [on] that party's fraud engaged in during prior litigation proceedings." Id.
I also note my disagreement with the majority's reliance on a recent federal case, Walsh v. Law Offices of Howard Lee Schiff, United States District Court, Docket No. 3:11-cv-1111 (SRU), 2012 WL 4372251 (D.Conn. September 24, 2012), in which the United States District Court for the District of Connecticut adopted an absolute privilege for purposes of a claim against an attorney under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., that the attorney had made certain "false, deceptive, and/or misleading representations in the course of litigating the [a]ction" at issue. (Internal quotation marks omitted.) Id. A review of the decision in Walsh reveals that the vast majority of the District Court's analysis is devoted to an unrelated issue of federal law, which, according to the District Court, ultimately required dismissal of the plaintiff's CUTPA claim. The District Court then turned briefly to the state law immunity issue, and, in one short paragraph consisting entirely of citations to several state court cases involving defamation actions, concluded summarily, and as an alternative ground for granting the defendant's motion to dismiss, that the plaintiff's CUTPA claim also was barred by the litigation privilege. In light of the extremely limited nature of the District Court's analysis, I do not think that the majority's reliance on Walsh is warranted, especially because the CUTPA action that was the subject of the District Court's ruling was not a true fraud claim, and there is nothing in the decision to suggest that the District Court had considered whether limited immunity, rather than absolute immunity, is appropriate for claims of attorney fraud. To the extent that the majority would treat the CUTPA claim in Walsh as a fraud claim because the complaint in that case alleges, inter alia, "false, deceptive, and/or misleading representations"; (internal quotation marks omitted) id.; including "fabricated documents" and a "false affidavit"; (internal quotation marks omitted) id.; the majority's view reflects a fundamental misconception both of the elements of the tort of fraud and the import of a factual allegation in a pleading as distinguished from a cause of action. First, there is nothing in the complaint in Walsh alleging that the false, misleading or deceptive statements were knowingly false, misleading or deceptive, as is required for purposes of a claim of fraud. Furthermore, even if such knowing falsity had been alleged, the plaintiff in Walsh would not have been required to prove it in order to establish a CUTPA violation because CUTPA has no such requirement; under CUTPA, proof of a false, misleading or deceptive statement or conduct would suffice. Finally, a fraud claim must be proven by clear and convincing evidence; see, e.g., Kilduff v. Adams, Inc., 219 Conn. 314, 330, 593 A.2d 478 (1991); whereas the standard of proof for a CUTPA claim is a preponderance of the evidence. See, e.g., Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997). Consequently, a CUTPA claim, and, in particular, the CUTPA claim at issue in Walsh, is in no respect similar or analogous to a fraud claim. The decision in Walsh therefore provides no support for the majority's holding.
