The Massachusetts Supreme Judicial Court recently affirmed the dismissal of a direct claim against an attorney based on the litigation privilege. The attorney, who represented the wife in a divorce proceeding, was sued by creditors of the ex-husband for allegedly “colluding” to create a bogus divorce agreement, avoiding payment to the husband’s creditors.

In Massachusetts, the litigation privilege provides that statements by a party, witness, or counsel during the course of a judicial proceeding are absolutely privileged, so long as the communications are related to that proceeding. Therefore, there can be no civil liability based on communications matters related to the proceeding. In Bassichis v. Flores, the SJC recently held that the term “statements” covers an attorney’s conduct in addition to written or verbal communications.

Attorney Michael Flores argued at a divorce trial that his client, the wife, was entitled to all property from the marital estate due to various actions by the husband which dissipated assets from the marital estate. The husband, who appeared pro se, did not contest Attorney Flores’ representations. The trial judge entered a judgment which transferred all the marital assets to the wife.

After the divorce agreement was finalized and the assets of the estate had been transferred, the husband – who had formerly operated a construction business – filed for bankruptcy. The husband’s bankruptcy matter was closed without any distributions, leaving his creditors high and dry. At this point, the creditors turned their attention to Attorney Flores and his conduct during the divorce proceeding.

The creditors filed suit against Attorney Flores alleging “active participation in fraudulent transfer, civil conspiracy, and violations of M.G.L. c. 93A.” They alleged that Attorney Flores colluded with his client, the wife, to create a divorce agreement that deliberately left the husband’s creditors without payment, and made “fraudulent misrepresentations” during the divorce proceeding. When Attorney Flores moved to dismiss the complaint based on the litigation privilege, the creditors argued that the litigation privilege did not apply to fraudulent misrepresentations, and only applied to communications made during the course of litigation, not to conduct by attorneys.

In a case of first impression in Massachusetts, the SJC considered whether the litigation privilege applied to the alleged misrepresentations made by Attorney Flores, as well as his conduct in representing the wife. The Court unanimously held that the privilege did indeed apply.

The Court noted that the purpose behind the litigation privilege is to encourage zealous advocacy for clients, without the fear of civil liability looming over an attorney’s representation of his or her client.

The Court referenced the longstanding view in the Commonwealth “that the litigation privilege applies regardless of bad faith or malicious intent.” Referencing a decision from the Connecticut Supreme Court on the scope of the litigation privilege, the SJC agreed that “the privilege is not intended to give offending attorneys immunity for making fraudulent statements, but to protect the overwhelming number of innocent attorneys from unjust claims of fraudulent conduct.” Specifically finding that the litigation privilege applied to conduct as well as written statements, the Court held that the “acts of preparing and advancing a litigation strategy are as integral to the duties of a lawyer as is advocating in the courtroom,” and that conduct falls squarely within the scope of the litigation privilege. Noting that this is a broad interpretation of the privilege, the Court reiterated their acceptance of “this broad protection as necessary to encourage zealous advocacy.”

With that said, the SJC also noted that attorneys are not completely immune from consequences for morally and ethically questionable actions related to litigation. Attorneys may be sanctioned by judges for making knowingly false representations in court, and may be subject to disciplinary proceedings for violating Rules of Professional Conduct. Here, the Court found no merit to the allegations that Attorney Flores made fraudulent misrepresentations during the divorce proceedings, or that he drafted the divorce agreement to avoid the husband’s creditors. Even had this been the case, the Court held that such actions, questionable as they may be, are protected from liability under the litigation privilege.

Finally, the Court observed that the husband’s creditors were not completely without a remedy. The Court noted that the creditors were able to secure attachments totaling $103,281.26, to several parcels of real estate owned by the husband and wife, as well as by the husband individually.

With this ruling, the SJC has broadened the protection of the litigation privilege in Massachusetts to cover conduct as well as communications made by an attorney during the course of representation.

Case: Bassichis v. Flores (Mass. July 1, 2022).