Montalvo v. Sondes
637 So.2d 127 (1994)
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Rule of Law:
An attorney does not have a cause of action against an adversary's counsel for filing a lawsuit unless the attorney's claim (1) alleges specific facts showing intentional malice or intent to harm, not mere conclusory allegations of bad faith, and (2) is brought only after the underlying litigation has terminated in the complaining attorney's favor.
Facts:
- Ileana Montalvo and Hector Montalvo were involved in a child custody dispute, initially resolved by a Virginia court order giving them joint custody.
- Ileana Montalvo moved to Louisiana with the child and hired attorneys Brian Sondes and E. Martin Fontaine.
- Sondes and Fontaine filed a motion in a Louisiana court seeking emergency jurisdiction based on allegations of sexual abuse that had previously been deemed unfounded by Virginia authorities.
- As a result of these filings, a Louisiana court ordered the child transferred to Hector Montalvo and sanctioned Ileana Montalvo for filing a 'false and fraudulent pleading.'
- Ileana Montalvo then terminated Sondes and Fontaine's employment.
- Montalvo hired new attorneys, Scott Bickford and Regina Matthews, who subsequently filed a legal malpractice lawsuit on her behalf against Sondes and Fontaine.
Procedural Posture:
- Ileana Montalvo, through her attorneys Bickford and Matthews, sued her former attorney, Brian Sondes, for legal malpractice in a Louisiana trial court.
- Sondes filed a third-party demand (a countersuit) against Bickford and Matthews, alleging they filed the malpractice suit in bad faith.
- Bickford and Matthews filed an exception of no cause of action (a motion to dismiss) in response to Sondes's claim.
- The trial court denied the exception, allowing Sondes's suit against Bickford and Matthews to proceed.
- Bickford and Matthews (appellants) appealed to the intermediate court of appeal, which affirmed the trial court's ruling, siding with Sondes (appellee).
- Bickford and Matthews (applicants) successfully petitioned the Supreme Court of Louisiana for certiorari to review the court of appeal's decision.
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Issue:
Does an attorney, sued for malpractice by a former client, have a valid cause of action for an intentional tort against the former client's new attorneys for filing that malpractice suit while the suit is still pending?
Opinions:
Majority - Marcus, J.
No. An attorney sued for malpractice does not have a cause of action against the opposing counsel for filing the suit if the underlying action has not yet been terminated in the attorney's favor and if the claim fails to allege specific facts demonstrating an intent to cause direct harm. Louisiana law protects attorneys from liability to their client's adversaries to prevent a 'chilling effect' on zealous representation. While an exception exists for intentional torts under Penalber v. Blount, the petition must allege facts showing 'specific malice or an intent to harm.' Sondes' petition, with its conclusory allegations of the suit being 'frivolous' and in 'bad faith,' fails to meet this standard and at most suggests negligence. Furthermore, borrowing a necessary element from malicious prosecution claims, a suit against an adversary's attorney for filing a claim is premature until the underlying suit is concluded in the complaining party's favor. This requirement prevents collateral litigation and ensures the primary dispute is resolved first.
Concurring - Ortique, J.
I concur with the majority's conclusion that Sondes has no cause of action. This opinion emphasizes that the rule protecting an attorney from liability to an opponent is critical for the adversarial system, as it prevents a 'chilling effect' and encourages zealous representation. The facts here are distinct from those in Penalber, where the attorney's conduct was a clear, calculated, and self-serving intentional tort (wrongfully seizing public funds). Sondes's allegations, which amount to minor procedural violations, do not rise to the level of an intentional tort and allowing his claim would undermine the principles that protect the adversarial process.
Analysis:
This decision significantly strengthens the protection afforded to attorneys from retaliatory lawsuits by opposing counsel. By importing the 'favorable termination' requirement from malicious prosecution law into this context, the court established a bright-line procedural prerequisite, making it nearly impossible to countersue an opposing attorney while the primary litigation is ongoing. This precedent discourages tactical lawsuits intended to intimidate opposing counsel and ensures that claims of malicious litigation are only heard after the original case has been fully adjudicated on its merits. It clarifies that merely filing a weak or ultimately unsuccessful lawsuit is not an intentional tort; a specific, malicious intent to harm must be factually pleaded.
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