Jim Flynn
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Jim Flynn, Money & the Law

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In the emotional cauldron of a legal dispute, it’s not uncommon for someone to be unhappy with someone else’s lawyer.

There are lots of reasons for this, such as: “How can that lawyer represent my low-life ex-spouse when he once represented both of us in a real estate deal?” Or, “How can that lawyer get away with giving such bad legal advice to my father, who has now died and left me nothing?” But can someone sue another person’s lawyer? The answer is, with limited exceptions, no.

Courts faced with such lawsuits have regularly thrown them out on various grounds. For example, it’s clear that a lawyer’s obligations are only to the lawyer’s own client and no one else. The idea is that lawyers should focus on the needs of their client without worrying about being sued by a nonclient. Plus, the nation’s adversarial system of dispute resolution inherently involves one person’s lawyer taking action contrary to the interests of others.

Even in a circumstance where a lawyer is giving legal advice to a client, the lawyer is largely protected from a suit by a nonclient who claims injury because the legal advice was wrong. (Client: “So, lawyer, is it OK for me to put land mines on my property to keep out trespassers?” Lawyer: “Uh, sure. I don’t see a problem with that.”) Again, the idea is that lawyers should be able to focus on the needs of their client without being distracted by a threat of lawsuits from third parties.

Another concern when a lawyer is sued by a nonclient stems from attorney-client privilege. Communications between a lawyer and a client are protected from disclosure. But a lawyer who is sued has a right to defend the claim, and this may require disclosing client communications. Prohibiting third-party suits against lawyers solves this problem.

The protection given lawyers from suit by nonclients is not absolute. A lawyer can still be sued by someone other than a client if the lawyer’s conduct is fraudulent or the lawyer negligently gives a legal opinion in a case where the lawyer knows third parties rely on the opinion, such as when making an investment.

In September, in a hotly contested case over ownership of three parking spaces in downtown Denver , the Colorado Supreme Court again had to address the issue of a nonclient suing someone else’s lawyer and it declined the opportunity to change the rules. The court said allowing such suits “could force the attorneys to weigh their clients’ interests against non-clients’ interests.” And, such lawsuits could result in “conflicting duties that could constrain the attorneys’ ability to represent their clients.”

To level the playing field a bit, nonclients can file Supreme Court grievances against another person’s lawyer if there has been a violation of ethics rules for lawyers.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Email moneylaw@jtflynn.com.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Contact him at moneylaw@jtflynn.com. "Best of Jim Flynn's Money & the Law" is now available at amazon.com — paperback or e-book.

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