Can attorneys and clients conspire?

• Author: Kedem, Allon

Farese v. Scherer, 342 F.3d 1223 (11th Cir. 2003).

A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." (1) The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acting within the scope of representation cannot be counted as a conspirator for purposes of the plurality requirement. (2) In other words, there can be no such thing as a conspiracy between an attorney and her client. This Comment argues that the Eleventh Circuit's limitation on attorney-client conspiracies is illegitimate as a matter of statutory interpretation and ill advised as a matter of policy. Part I sets out the facts of Farese. Part II argues that a categorical rule against attorney-client conspiracies is misguided. Part III concludes.

I

In 2001, Thomas Farese filed suit against Harold Dude in federal district court under 42 U.S.C. [section] 1985(2), clause 1, which imposes civil liability for conspiracies to intimidate or injure parties or witnesses to federal lawsuits. Farese alleged that Dude and Dude's attorneys intimidated and harassed him in order to compel his withdrawal of a prior lawsuit against Dude. The campaign of intimidation included personal threats and frivolous lawsuits filed against members of Farese's family. The district court dismissed Farese's claim, holding that he lacked standing and that he had failed to state a claim upon which relief could be granted. (3)

Farese appealed the dismissal to the Eleventh Circuit. After concluding that Farese had standing, the circuit court turned to what it described as "an issue of first impression in our circuit: whether attorneys operating within the scope of their representation may be deemed conspirators in a [section] 1985 conspiracy." (4) Because of [section] 1985's plurality requirement, whether Farese's suit could survive summary judgment would turn on whether the court counted Dude's attorneys as conspirators; if not, the claim would have to be dismissed.

After observing that few circuits had addressed the subject, the Eleventh Circuit reasoned that subjecting an attorney-client conspiracy to the prospect of liability might threaten the "'right of a litigant to independent and zealous counsel.'" (5) The court further noted that other disciplinary mechanisms to punish attorney misconduct already exist. (6) Given these considerations, it concluded that "as long as an attorney's conduct falls within the scope of the representation of his client, such conduct is immune from an allegation of a [section] 1985 conspiracy." (7)

II

The Eleventh Circuit's decision to immunize attorney-client conspiracies was ill considered. Section 1985 speaks categorically, addressing conspiracies against "any party or witness in any court of the United States." (8) The words evince no intention to exempt attorney-client conspiracies, nor did the Eleventh Circuit claim otherwise. Indeed, the court made no attempt to justify its decision with respect to the words of the statute or the intent behind it. The court instead relied on policy grounds alone, limiting the reach of one right (the right to be free from conspiracies to intimidate or injure witnesses or parties to a lawsuit) in favor of another (the right to effective legal representation) without any legislative guidance about their relative importance. Tradeoffs between these sorts of incommensurable values are precisely the kinds of decisions least suitable for judicial resolution.

By resting its decision on its own policy judgment rather than on the statute's language, the court exceeded its judicial mandate. (9) It is controversial whether courts should ever read equitable exceptions into statutes, even when a literal reading would seem to generate an outcome at odds with congressional intent. (10) But even if equitable exceptions are sometimes appropriate to effectuate legislative intent, nothing about [section] 1985 suggests that a concern for zealous advocacy crossed Congress's mind while enacting it. (11) Congress may one day decide that the attorney-client relationship warrants an exception to federal conspiracy law. Until that happens, judges are not free to limit the scope of federal law merely because they decide it would be preferable for policy reasons. (12)

Not only is shielding attorney-client conspiracies from liability incompatible with the plain language of [section] 1985, but it is also bad policy. Though the "right of a litigant to independent and zealous counsel" is undoubtedly important, the Eleventh Circuit offered no reason to believe that the prospect of [section] 1985 liability would chill effective advocacy. Good faith lawyering is generally immune from liability, and "[c]ourts have been reluctant to impose any professional liability where the lawyer deals at arm's length with a client's antagonist ... within minimum bounds of decency and orderly judicial process." (13) If an attorney initiates a suit for good faith reasons--rather than to deter or injure a party or witness to a suit--by its terms [section] 1985(2) does not apply. Courts have consistently held that an alleged conspirator must act with the specific purpose of interfering with trial rights to come within [section] 1985(2)'s ambit. (14) Further protecting zealous advocacy, courts have held that mere conclusory allegations of wrongdoing do not suffice to establish liability. (15) Where a plaintiff can show deliberate, wrongful conduct by an attorney and her client, however, [section] 1985 should offer relief.

In other contexts, courts do not hesitate to hold lawyers accountable for intentionally collusive, fraudulent, or abusive behavior. (16) Indeed, attorney misconduct gives rise to conspiracy liability in a variety of circumstances--for instance, attorney-client conspiracies to commit health care fraud or to obstruct justice. (17) Yet the Eleventh Circuit's rule would shield an attorney from [section] 1985(2) liability even for...