Day on Torts - New Post: Attorney not liable for advising client to make true police report

Where an attorney advised her client in a family law case that her husband’s actions in distributing a video of the client having sex with another man might be criminal and advised the client to make a true report to the police department, the attorney was not liable for any tort.

In Pagliara v. Moses, No. M2018-02188-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2020), husband and wife were married, but at some time before the marriage yet while they were dating, wife “used Ecstasy and engaged in sexual relations” with another man “and videotaped their encounter.” After husband and wife were married, the wife of the other man on the video found the video and forwarded it to husband, along with a photograph of a sexual nature. Husband received this information while he was on a business trip in California, and he proceeded to forward a part of the video as well as the photo “to close friends of him and wife.”

Wife filed for divorce and was represented by the lawyer and law firm who were named as defendants in this case. According to plaintiff husband’s complaint, “wife inquired with [defendant lawyer] whether wife should file a police report against plaintiff for forwarding the images to their close friends.” Plaintiff asserted that defendant told wife that “filing criminal charges seemed to be the only way to obtain leverage over plaintiff,” and defendant gave wife the name of a criminal defense attorney who was defendant’s son-in-law. Wife thereafter went to the local police department to file a report, and both husband and wife were interviewed as part of the investigation. Eventually a report was filed with the San Diego Police Department since husband was located there when he forwarded the images. No criminal charges were ever filed and the investigations were closed.

Plaintiff husband filed this suit against defendant attorney for malicious prosecution, civil conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The trial court granted defendant’s motion to dismiss all claims, and the Court of Appeals affirmed.

On appeal, plaintiff first asserted that the trial court wrongly considered the police report, which was attached to the complaint as an exhibit, when deciding the motion to dismiss. The complaint alleged that the police report was filed under a certain statute, but the report itself referred to a different statute. The Court of Appeals held that it was not error to consider the attached exhibit, and specifically noted that the Sixth Circuit has held that “when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations.” (internal citation omitted).

Next, the Court analyzed the malicious prosecution claim. An essential element of such a claim is showing that a “prior suit or judicial proceeding [was] instituted against the plaintiff.” (internal citation and quotation omitted). Traditional legal proceedings in a court as well as “certain administrative proceedings” may satisfy this element. Here, however, there was “no criminal proceeding against plaintiff.” While there was an investigation, there was no arrest, criminal charges, or indictment. “A criminal investigation by law enforcement is neither a judicial proceeding nor a quasi-judicial administrative proceeding with the authority to make adjudicatory findings that may adversely affect legally protected interests of persons submit to its jurisdiction.” (internal citation omitted). Because there was no prior suit or judicial proceeding against plaintiff here, dismissal of the malicious prosecution claim was affirmed.

Regarding the civil conspiracy claim, the Court noted that such a claim “requires an underlying predicate tort allegedly committed pursuant to the conspiracy.” (internal citation omitted). “Conspiracy, standing alone, is not actionable where the underlying tort is not actionable.” (internal citation omitted). The Court of Appeals agreed with the trial court that there was no “underlying wrongful conduct by Defendants to support a claim of civil conspiracy” in this case. The Court pointed out that Tennessee Rule of Professional Conduct 4.4 “prohibits an attorney, while representing a client, from threatening to pursue criminal charges against an individual in order to obtain an advantage in a civil matter,” but the Court found that this was not what happened in this case. The Court reasoned that “it is the threat of going to the police that might be used to gain an advantage in a civil matter. Once wife contacted law enforcement and provided them with information, the matter was in the hands of law enforcement, not wife or defendants.” Finding that defendant “cannot be held liable under a claim of civil conspiracy based on her actions of providing legal advice instructing her client to provide truthful facts to law enforcement and referring her client to a criminal defense attorney,” dismissal of the conspiracy claim was affirmed.

Looking next to the claim of intentional infliction of emotion distress, the Court stated that this claim requires a showing of “conduct so outrageous, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (internal citation omitted). Based on the facts of this case, the Court agreed with the trial court’s holding that defendants’ actions as a matter of law did not rise to this level.

Finally, the Court addressed the negligent infliction of emotional distress claim. While the trial court ruled that defendant did not owe a duty to plaintiff, the Court of Appeals instead found that even if there was a duty, it was not breached. The Court reasoned: “Assuming for present purposes that Defendants owed a duty to Plaintiff, the facts alleged by Plaintiff in the complaint, when taken as true, do not support that any such duty was breached by Defendants, when [attorney] provided legal advice to wife that plaintiff’s actions could be criminal, instructed her to file a police report concerning conduct by Plaintiff that he has admitted is true, and referring her to a criminal defense attorney, even if [attorney’s] motive was to obtain some sort of advantage in some unknown way in the divorce action as Plaintiff has alleged.” Based on this rationale, dismissal of the negligent infliction of emotional distress claim was also affirmed.

The facts as set forth in the opinion were not on plaintiff’s side in this case. Arguing that a lawyer has committed a tort by advising a client to give a true police report about behavior that you have admitted to is not an easy argument to make.

NOTE:  To aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.  In this case, the opinion was released a little more than three months after oral argument.