Articles Posted in Absolute Litigation Privilege

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DSC01488-300x200Don’t Sue The Other Party’s Lawyer

Unfortunately, one of the most common ways for a lawyer to be sued is by an opposing party. As a lawyer, you owe a duty to your client. You do not owe a duty to the opposing party. (There are duties to the Court and duties to comply with professional rules too, but those are not at involved here.) In my career I have been sued twice by opposing parties. Both cases were dismissed.

Cole v. Yanoff, 2025 IL App (1st) 241017-U is a new version of this old story. Yanoff represented a landlord who sued and sought to evict Cole. In the eviction case (the first case) Cole then sued Yanoff for breach of contract, intentional infliction of emotional distress. After he lost the eviction case, Cole filed another case (the second case) against Yanoff. The Circuit Court dismissed the second case on the grounds of the Absolute Litigation privilege and Cole appealed. The absolute litigation privilege prohibits a litigant from suing the other party’s lawyer if the cause of action arises out of the legal work the lawyer did.

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IMG_9265-300x225No matter how you feel about a result of litigation, you cannot sue the opposing lawyer. The litigant in this case tried to sue the lawyer who represented a landlord in an eviction case. But he had already sued the lawyer in another case and lost. The trial court dismissed the lawsuit. The Illinois Appellate Court affirmed on the grounds of res judicata.

https://scholar.google.com/scholar_case?case=18180237907010334184&q=legal+malpractice&hl=en&as_sdt=4,14&as_ylo=2025

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In Scully v. Novack & Macey, LLP, 2022 IL App (1st) 210319-U, the Illinois Appellate Court affirmed the dismissal of slander of title claims against the Defendant law firm. The law firm represented some of the parties to a family feud over inherited real estate. During the litigation, the law firm, under instructions from its client, placed a lis pendens on real property. The claims for slander of title against the law firm were dismissed under the absolute litigation privilege. A lis pendens is a public document filed with the Recorder of Deeds that gives notice to any purchaser that the property is subject to a claim in litigation.

As the court explained, “Illinois’s absolute litigation privilege derives from section 586 of the Restatement (Second) of Torts. That section provides, ‘An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.’ ¶ 42.

The absolute litigation privilege barred any claim against the law firm for its action in filing the lis pendens. The court also noted that the attorneys had a valid reason to file the lis pendens. ¶ 45. Because the lis pendens related to the pending litigation and served the interests of their clients, the law firm’s actions were absolutely privileged.

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