Can You Sue the Other Side's Lawyer?

A legal malpractice claim depends on a duty of care, and that duty normally runs only to the lawyer's client. The legal term for that relationship is privity. You are not the other side's client, and the whole point of the adversary system is that their lawyer is working against you.

Courts protect that arrangement on purpose. If every losing party could sue the winning party's lawyer, lawyers would hedge their advocacy to avoid being sued by their opponents, and every lawsuit would spawn another one.

None of this means opposing counsel can do anything they like. Lawyers remain bound by ethics rules, court rules, and criminal law, and judges can sanction them. The point is narrower: the remedy for most bad behavior by the other side's lawyer is a sanction or a grievance, not a damages lawsuit by you. As a general rule, a lawyer is liable for negligence only to the lawyer's own client, so an opposing party cannot bring a malpractice claim against the other side's attorney.

Texas has one of the clearest statements of this rule. In Cantey Hanger, LLP v. Byrd (2015), the Texas Supreme Court held that an attorney is immune from claims by non-clients for conduct that is part of discharging the attorney's duties to a client, even if the conduct is alleged to be fraudulent. In that divorce case, the husband alleged that the wife's law firm helped falsify a bill of sale for an aircraft to shift tax liability onto him. The court applied immunity because the alleged conduct fell within the scope of the firm's representation. Immunity does not cover fraudulent conduct outside the scope of the lawyer's duties to the client; the examples given include a lawyer who joins a client's fraudulent business scheme or assaults opposing counsel during a trial.

Many states recognize some form of litigation privilege, which protects statements made in the course of judicial proceedings. California's version, in Civil Code section 47(b), is among the broadest and most litigated.

In Silberg v. Anderson (1990), a husband sued his wife's divorce attorney, alleging she had recommended a psychologist for a custody evaluation as independent and neutral without disclosing her own preexisting relationship with him. (He also sued his own attorney.) The California Supreme Court held that the privilege is absolute and rejected an "interest of justice" exception, reinstating the dismissal.

Under Silberg v. Anderson, California's litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings, (2) by litigants or other participants authorized by law, (3) to achieve the objects of the litigation, and (4) that has some connection or logical relation to the action. The court noted that the only exception to applying the privilege to tort suits had been malicious prosecution.

In practice, that means claims for defamation, emotional distress, or negligence based on what the other lawyer said in pleadings, letters, depositions, or settlement talks usually fail in California, and similar rules apply in many other states.

If the other side's lawyer filed a lawsuit against you that never should have been brought, malicious prosecution is the claim most likely to survive. It is also hard to win. In California, as summarized by Cornell's Legal Information Institute, you generally must show that:

• the defendant was actively involved in bringing or continuing the earlier lawsuit;
• the earlier lawsuit ended in your favor;
• no reasonable person in the defendant's position would have believed there were reasonable grounds to bring it;
• the defendant acted primarily for a purpose other than winning on the merits; and
• you were harmed as a result.

The probable cause element is often the hardest to prove. In Sheldon Appel Co. v. Albert & Oliker (1989), the California Supreme Court held that a claim has probable cause if "any reasonable attorney would have thought the claim tenable," an objective test that protects lawyers who bring weak but arguable cases. Losing a case is not enough. The earlier case must have been so lacking in merit that no reasonable lawyer would have filed it.

Timing matters too. Because you need a favorable end to the earlier case, you usually cannot bring malicious prosecution while that case is still going.

Abuse of process targets a different problem. Instead of asking whether the lawsuit should have been filed at all, it asks whether a legal procedure was misused for an ulterior purpose. Cornell's Legal Information Institute describes it as the misuse of legal process for an ulterior purpose, and the elements generally include an improper use of process and an ulterior motive. A classic example is using a subpoena, lien, or court filing as leverage for something unrelated to the case.

New York's treble damages statute for lawyer deceit

New York has an unusual tool aimed directly at lawyers. New York Judiciary Law section 487 provides that a lawyer who is guilty of deceit or collusion with intent to deceive the court or any party forfeits treble damages to the injured party, recoverable in a civil action. The statute covers "any party," so it can reach the other side's lawyer. In Amalfitano v. Rosenberg (2009), a party sued the opposing lawyer over a lawsuit built on a material misrepresentation, and New York's highest court held that even an unsuccessful attempt to deceive can support liability because the statute focuses on the lawyer's intent. The damages claimed were the costs of defending that litigation from its start, which the statute allows to be trebled.

Truthfulness to non-clients

Lawyers do owe a limited duty of truthfulness to people who are not their clients. ABA Model Rule 4.1 bars a lawyer, while representing a client, from knowingly making a false statement of material fact or law to a third person. That rule is enforced through bar discipline. Whether breaking it also supports a lawsuit depends on state law and the facts, and in states with strong immunity rules, like Texas, the answer is often no.

If the other side's lawyer is behaving badly while the case is going on, the most effective remedies are usually inside the case.

Under Federal Rule of Civil Procedure 11(b), a lawyer who files a paper in federal court certifies that it is not presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, and that its factual contentions have evidentiary support. Courts can impose sanctions for violations, and state courts have similar rules.

While your case is still open, keep a written record of the conduct that concerns you: dates, what was said or filed, and who was present. Share it with your own lawyer, who can decide whether to raise it with the judge, move for sanctions, or simply use it to your advantage in the case. Judges generally have more power to fix misconduct during a case than anyone does after it ends.

If the other side sued you and lost, save the final judgment or dismissal order and a copy of the complaint. Those documents are the starting point for any later malicious prosecution evaluation, and the deadline to bring that claim is set by your state's law, so do not wait long to ask. A malicious prosecution claim generally cannot be filed until the earlier case has ended in your favor, so the final order in that case is the key document.

A grievance is available against any licensed lawyer, including the other side's. See how to file a bar complaint against a lawyer.

Many people who want to sue the other side's lawyer are really upset about how their own case went. That anger is sometimes pointed at the wrong person. Your own lawyer is the one who owed you a duty of care. If your lawyer failed to object to improper tactics, missed a chance to seek sanctions, gave you bad advice about a settlement, or let a deadline pass, that may be a malpractice issue. See signs your lawyer is committing malpractice and what is not legal malpractice.

Divorce cases are a common example, since both sides' lawyers are in the middle of emotional, high-stakes disputes. Read divorce lawyer malpractice if that is your situation.

If you think your own lawyer's mistakes cost you, a free case review takes about two minutes and can connect you with an independent attorney in your state who handles legal malpractice claims.