An attorney is protected from the liability for defamation that occurs during a judicial proceeding. However, such protection will not provide an attorney with an absolute defense to liability for abuse of process[i]. Therefore, an attorney can be made liable for damages for abuse of process for acts that includes personal acts, or acts of others instigated and carried on by the attorney[ii].
A plaintiff has to establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice to state a claim for abuse of process against an attorney[iii].
A mere institution of legal action by an attorney will not constitute abuse of process, even it is done with an improper purpose or motive. However, if it is proved that the attorney performed some additional act which is not proper in the regular prosecution of the proceedings, then the attorney can be held liable of abuse of process[iv].
In Alexandru v. Dowd, 79 Conn. App. 434 (Conn. App. Ct. 2003) , the attorney represented the injured party’s employer in an action for sexual harassment and negligent and intentional infliction of emotional distress brought by the injured party. The injured party alleged that the attorney made false and defamatory statements about her to the court in a memorandum of law in support of a motion in limine. The injured party also argued that the attorney was not entitled to an absolute privilege because the alleged defamatory statements were not pertinent to a subject in controversy.
The court observed that the alleged defamatory statements, which stated that expert opinions presented by the injured party were inherently unreliable, were pertinent to the subject of that reliability. The court concluded that there is no abuse of process because the motion in limine was not used in an improper manner.
[i] Alexandru v. Dowd, 79 Conn. App. 434 (Conn. App. Ct. 2003)
[ii] Lambert v. Breton, 127 Me. 510 (Me. 1929)
[iii] Journeymen, Inc. v. Judson, 45 Ore. App. 249 (Or. Ct. App. 1980)
[iv] Epps v. Vogel, 454 A.2d 320 (D.C. 1982)