Malicious Defense of Civil Action

LegalI like it when the law is even-handed. Imagine what life would be like if it wasn’t. Everything would be skewed – often in favor of our opponent.

Imagine the following. A defense attorney in a civil case creates false material evidence while acting as defense counsel. The defense attorney then withdraws as counsel. The defense attorney then gives false testimony advancing the manufactured evidence. Can that attorney besued for the harm they’ve caused?
Here are the assumed facts – At a real estate closing at an attorney’s office, the plaintiffs acquire title to a condominium unit. They acquire title from a trust. About eight months later, the town wherein the property is located brings against the trust, the trustees, and the plaintiffs.

The theory is that the condominium unit had been sold without a certificate of occupancy as required by local ordinance.
The attorney who handled the real estate closing generally represents the trust. The plaintiffs, however, decide to get an independent attorney. This attorney brings a counterclaim
against the trust and the trustees. The suit seeks to rescind the purchase of the condominium unit under the terms of the condominium statute.

The town prevails in its action against the trust, the trustees, and the plaintiffs. The plaintiffs then prevail in their counterclaim against their sellers but they can’t collect the judgment. They then go after the trust’s attorney.

The evidence is that the trust’s attorney said that the permit was all set and that he had checked with the building inspector. This may have been a lie. A memorandum concerning this alleged discussion was prepared by the attorney. The memorandum contains some false information – such as who was physically present at the meeting.

The essence of a malicious defense claim is falsehood. In such instances, the defense is based on a lie. Sometimes, these lies are manufactured or invented lies. Fortunately, the law provides a remedy for deceit. It does so in these and almost every other situation where lies are perpetrated.

The author – Leo Tolstoy – once wrote: “Be bad, but at least don’t be a liar, a deceiver!”

It appears that liars are despised in the law. This is as it should be because our system of justice cannot sustain itself were it any different.

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