Tortious interference.

• Author: Holt, Jack E., III
• Position: Letters - Letter to the editor

Peter R. Ulanowicz' articles, "Taking the Fight to the Bullies: Tortious Interference Liability for Both Employer and Attorney on Baseless Restrictive Covenants, Part I" (Jan. 2011) and "Part II" (Feb. 2011) encourage lawsuits against attorneys based upon the following statement: "agents can be held liable for the intentional tortious acts committed by their principals (even when committed within the scope of employment), [fn26] ..." (page 31,Part I, emphasis added). The case cited for that proposition, First Financial USA Inc. v Steinger, 760 So. 2d 996 (Fla. 4th D.C.A. 2000), doesn't stand for the author's assertion. Rather it recites the well known agency principle that an agent can be held liable for his or her own tortious conduct, even if committed in the scope of an agency. Accordingly, a fundamental premise of the articles, that attorneys can be held liable for the intentional acts of their clients, is without legal support.

The articles proceed to promote the suing of attorneys to gain a purported discovery advantage in tortious interference cases (page 30, Part II), and to create a conflict of interest to disqualify opposing counsel (page 29, Part II). The author justifies this strategy by claiming that adding attorneys as defendants will prevent the assertion of a testimonial privilege during depositions concerning that attorney's "communications with third parties, in this case a former employee's new employer" (page 30, Part II). This alleged rationale for suing an attorney fails since there is no testimonial privilege as to communications between an attorney and nonclient third parties. Additionally, the further justification for joining the attorney in the lawsuit, to create a conflict of interest that disqualifies the opposing party's counsel of choice, is also without merit. Any conflict of interest between the attorney and client arises out of the facts at the time of the attorney's communications with the third parties on behalf of that client. The adding of the attorney as a defendant in the lawsuit does not create the conflict. This tactic is also inconsistent with the author's purported goal to "help the bar regulate itself in the public interest" (page 30, Part II).

Attorneys who threaten people or businesses with litigation based upon patently unenforceable restrictive covenants should be sued for tortious interference in appropriate situations in which those threats have caused damage. However, the decision to file...