CHAPTER 8 - 8-7 FRAUD

• Jurisdiction: United States

8-7 Fraud

8-7:1 Common Law Elements

Fraud claims are not commonly brought against attorneys largely because the claim may jeopardize insurance coverage and the pleading requirements on the burden of proof are stricter than those for those causes of action so far discussed. The elements of an action in common law fraud are that: "(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. . . . Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance."¹⁴²

8-7:2 Special Pleading Requirements and Burden of Proof

"Where a claim for damages is based upon fraud, the mere allegation that a fraud has been perpetrated is insufficient; the specific acts relied upon must be set forth in the complaint."¹⁴³ Federal Rule of Civil Procedure 9(b) provides that "[i]n alleging fraud . . . a party must state with particularity the circumstances constituting fraud."

The party asserting such a cause of action must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard has been described as "clear and satisfactory" or "clear, precise and unequivocal."¹⁴⁴

8-7:3 Knowledge or Reckless Disregard for Truth

"In matters susceptible of actual knowledge, if the party is known to have the best means of knowledge, makes an affirmation contrary to the truth, in order to secure some benefit to himself, the law treats him as stating that he knows that whereof he affirms, and so as guilty of a fraud, although he spoke in ignorance of the facts; because he asserts that he knows what he does not know. . . . A fraudulent representation in law is one that is knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it."¹⁴⁵

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Notes:

^[142] Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777-78 (2002) (citation omitted; internal quotation marks...