Exposed

[ssponz]

This suite is in Maryland, I live in NY

I recently attended mediation between two contractors that were suing each other. I was a former employee of one of the contracting firms and although I was not named in this suite the attorney for my former employer requested that I attend this mediation. When I arrived I was not listed on the mediators list of participants but he allowed me to stay and take part. He had me add myself to the list and list myself as “self”. During this mediation the opposing council, and my former employers attorney, learned that my former employer was pretty much judgment proof as he has no assets. The opposing council then requested that he, his company and I submit financial statements to determine if this suite was worth pursuing. Again at the advice of my former employer’s attorney I did submit a personal financial statement. I don’t have a lot of assets but apparently they see me as one way to get some cash for their client and have now added me to the suit individually. My question is, is there any recourse I can take against my former employers attorney for exposing me to an $850,000 law suit that I had nothing to do with? Can I sue him? File a grievance? Anything? Thanks for your help in this matter…

 

[latigo]

(I thought I had posted this earlier, but I don't see it on the board, so)


Yes, provided that:

(1) The plaintiff’s attorney joins you as a party defendant contending that you and your employer are jointly and severally liable in the underlying action, and

(2) The case against you is found to have no merit, either in law or in fact …

Then both the plaintiff and its zealous attorney will be prime targets for a tort action of malicious prosecution. (Or abuse of process, about the same thing.)

There appears to be growing trend in recent case law, (including some mention of it in the recent edition of the Restatement of Torts, at least as I’m led to believe, but not certain) that hold the attorney liable under the common law tort of malicious prosecution for instituting “unjustifiable, spurious, unreasonable and vexatious litigation”.

[Some examples out of California where the theory is reviewed being Bertero v. National General Corp. (1974) 13 Cal.3d 43, Franzen v. Shenk (1923) 192 Cal. 572, and Albertson v. Raboff (1956) 46 Cal.2d 375. Gause v. McClelland (1951) 102 Cal.App.2d 762, 764; Black v. Knight (1919) 44 Cal.App. 756, 770; Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 785-788.)]

This situation looks particularly strong in your favor inasmuch as you were not joined in the original action and only add after it was determined that the plaintiff had gone bust and you hadn’t.

It would certainly weaken the attorney’s defense and strengthen yours on the element of his probable cause to file against when it obviously didn’t occur to the attorney in his initial assessment of the lawsuit.

Obviously, if you are joined, you will need to hire an attorney. So you must rely on his advice. But if it were me, I would file a counterclaim against the plaintiff and move to add the attorney as co-counter defendant.

What would happen is that your counterclaim would sit in abeyance until the case against you was decided.

If it goes in your favor, then your attorney would put on your evidence and proof of damages.

The jury, or the court if a bench trial, would then rule on the evidence.

If this attorney carries out his threats, I think he is about to stick his skinny neck out a country mile. Not only for you to lob it off, but the state bar association.

But it’s like the old adage. “99% of the lawyers are giving the other 1% a bad name.”

Let us know what develops, please.

(I have purposely avoided getting into the somewhat complicated law of agency and the theory of respondent superior from the standpoint of your personal liability for the debts of your employer. Your attorney will explain all of that.)

Sax

 

[ssponz]

Thanks Sax!

Thank you very much for your insightful response to my question. It is much appreciated and I will definitely look into moving forward with this with quite a bit more understanding of the situation form your reply. Sorry I didn't respond sooner to your reply but I posted my question just before leaving on a business trip.

My original question was more geared towards taking action against my former employers attorney for exposing me to this law suit in the first place.

From my original post; “My question is, is there any recourse I can take against my former employers attorney for exposing me to an $850,000 law suit that I had nothing to do with? Can I sue him? File a grievance? anything?”, but it makes more sense to go after the ones that are bringing it against me. Maybe my former employers attorney should at least give me a break on the cost of filing the counter suit against the plaintive…

Thanks again Sax