Taking the fight to the bullies: tortious interference liability for both employer and attorney on baseless restrictive covenants, Part II.

• Author: Ulanowicz, Peter R.
• Position: Labor and Employment Law

Woe be unto the lawyer who dares file the tortious interference claim against another attorney; for he or she shall surely suffer the wrath of a thousand [section]57.105 motions!

Filing any suit against an attorney or a law firm is always a daring move for a plaintiff; with the buffer between defendant and opposing counsel removed, the often cordial, "respectful opposition" mindset between counsel typically vanishes. It's now personal, and given that a law firm defendant doesn't have to concern itself with billing invoices, chances are that every roadblock in the book will be thrown in the hopes of derailing the suit.

In the specific context of a tortious interference claim based on a noncompete sent to an employer, both the former employer and the law firm would be named defendants, and naturally the potential for a conflict of interest exists. It would then be up to the defendant law firm to consider whether it could still provide competent and diligent representation to its client, that the representation is not prohibited by law, that no adverse positions between the firm and client exist that would have to be asserted before the court, and that client has given its informed consent to the representation. (1) If there are any issues as to any one of these factors, the law firm should consider withdrawing its representation of the former employer.

Notwithstanding the holdings of SCI Funeral Services of Florida, Inc. v. Henry, 839 So. 2d 702 (Fla. 3d DCA 2002), and North Star Capital Acquisitions, LLC v. Krig, 611 F. Supp. 2d 1324 (M.D. Fla. 2009), as discussed in part one of this article, a defendant law firm named in a tortious interference suit will almost certainly raise the issue of litigation privilege as a defense. The concept of litigation privilege was best described by the Florida Supreme Court in the 2007 case Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 383 (Fla. 2007): "[T]he principle of the litigation privilege in Florida, essentially providing legal immunity for actions that occur in judicial proceedings." Echevarria extended litigation privilege immunity to all torts in Florida, including tortious interference. (2) Other courts have followed Echevarria in prohibiting tortious interference claims based on actions occurring during the course of judicial proceedings. (3)

But for all that Echevarria does say regarding litigation privilege, what is most important is what it doesn't say. Echevarria applies to actions that occur within the course of judicial proceedings; it says nothing as to actions that arise before a suit is...