While South Carolina is better known for its Christian fundamentalism than for Buddhism, Jainism or Sikhism, we have a strangely karmic rule of law which actually permits a litigant in certain circumstances to return fire not only at the opposing party, but also at the opposing party’s legal counsel. Karma holds in part that morally good acts are rewarded with positive consequences, whereas bad acts will be returned by negative consequences. So then, is it a morally bad act for a lawyer to sue someone on behalf of a client? If so, what bad consequence awaits the offending lawyer?
Like all jurisdictions, South Carolina has built in governors that regulate and constrain most bad conduct in litigation. Rule 11 of the SCRCP provides the court with the power to sanction an attorney who commences or continues a claim which lacks legal or factual merit. In addition, the South Carolina Rules of Professional Conduct contain duties of candor to the court, opposing counsel and third parties which open offending counsel to possible action against their licenses to practice law if violated. Finally, South Carolina also has a civility oath which contains certain guidelines with regard to the manner in which we conduct ourselves – after all, this is the South, where courtesy, professionalism and, yes, manners still apply.
Unlike many States, however, South Carolina has expanded the field of play when it comes to correcting bad litigation behavior. Traditionally, if an opposing party’s attorney overstepped his or her bounds, the aggrieved party could only sue the opposing party for the conduct of their attorney on theories such as malicious prosecution, abuse of process, reimbursement for costs and fees under the South Carolina Civil Frivolous Proceedings Sanctions Act or even tortious interference with existing contractual relations or prospective economic advantage. The requirement of privity in a legal malpractice claim made a direct action against the lawyer who acted badly impossible. After all, the first element of a claim of legal malpractice had always been the existence of an attorney client relationship. As stated in Gaar v. North Myrtle Beach Realty, Co, Inc., 287 S.C. 525, 339 S.E.2d 887 (Ct.App. 1986):
“In our opinion, the better rule is that an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client. Accordingly, an attorney who acts in good faith with the authority of his client is not liable to a third party in an action for malicious prosecution [Citation omitted]. Such a suit is properly brought against the party to the original action, not the attorney representing him. The attorney normally conducts the litigation solely in his professional capacity. He has no personal interest in the suit. In his professional capacity the attorney is not liable, except to his client and those in privity with his client, for injury allegedly arising out of the performance of his professional activities.”
“Has no personal interest” – hmmm. Well, what if there is a personal interest and more than just the interest in earning a fee which will doom most all of us if that represents bad karma? In Stiles v. Onorato, 318 S.C. 297, 457 S.E.2d 601 (1995), our Supreme Court answered that question. In overturning the dismissal of a claim brought by a party against the opposing party’s attorney, our Court held that “an attorney may be held liable for conspiracy where, in addition to representing his client, he breaches some independent duty to a third person or acts in his own personal interest, outside the scope of his representation of the client.”
So now the balance is struck. We are charged by the rules to be zealous advocates for our clients. However, we are cautioned by Stiles not to go so far as to conspire with our clients or to act out of some improper personal motivation. While it seems that the line should be pretty easy to define, we have found in too many circumstances based on the cases we review that it is a line which is often most apparent AFTER it has been crossed. This seems to be a growing phenomenon which we attribute in large part to the competitive marketplace for legal services. The rhetoric of lawyers who promise to be “tougher” or to “fight harder” than their counterparts may be the slippery slope that leads one to go over the line. After all, if you make it your life’s work to touch the line, sooner or later it will be crossed. A word to the wise: step aside if you are too close the action or too personally involved in a case to maintain objectivity while zealously advocating for your clients. Failure to do so may invite bad karma.
In closing, let’s take a collective breath together and reflect instead on a Biblical passage that also seems to have application here: “He that leadeth into captivity shall go into captivity: he that killeth with the sword must be killed with the sword. Here is the patience and the faith of the saints.” (Rev.13:10 KJV).
Ronnie Richter and Eric Bland