Scholz v. Epstein, 341 Conn. 1 (2021)

Citation: Scholz v. Epstein, 341 Conn. 1 (2021)
Parent Document: Scholz v. Epstein, 341 Conn. 1 (2021)
Jurisdiction: Connecticut (state)
Effective Date: 2021-09-29
Original Source: https://www.courtlistener.com/opinion/6244827/scholz-v-epstein/ ↗

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the underlying purpose of the litigation and claims chal-
lenging the attorney’s role as an advocate for her or his
client. See Simms v. Seaman, supra, 308 Conn. 546.
‘‘[W]e have refused to apply absolute immunity to
causes of action alleging the improper use of the judicial
system’’ but have applied immunity to claims premised
on factual allegations that challenge the defendant’s
participation in a properly brought judicial proceeding.
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 629. The
former involves the improper use of the courts ‘‘to
accomplish a purpose for which [the courts were] not
designed’’ and is therefore not protected by the litiga-
tion privilege. (Internal quotation marks omitted.)
Simms v. Seaman, supra, 546. The latter does not
involve consideration of whether the underlying pur-
pose of the litigation was improper and, thus, is entitled
to absolute immunity, even if the plaintiff alleges that
the attorney’s conduct constituted an improper use of
the courts. Id., 546–47. That is to say, it is not enough
for the plaintiff to allege that the misconduct at issue
constituted an abuse of the legal system, but, rather,
the cause of action itself must challenge the purpose
of the underlying litigation. Tyler v. Tatoian, supra,
164 Conn. App. 93. Thus, the privilege absolutely bars
causes of action arising from attorney advocacy. See,
e.g., MacDermid, Inc. v. Leonetti, supra, 628.
For example, in Simms, although the plaintiff alleged
that the defendants’ conduct was improper—the alleged
fraud done on behalf of the client for her financial
benefit to his financial detriment—his fraud claim did
not challenge the purpose of the underlying divorce
proceeding, and, thus, we held that the plaintiff’s fraud
claim merely challenged the defendants’ conduct while
representing or advocating for a client, conduct for
which they were absolutely immune. In determining
whether the privilege applied in Simms, we did not
assess whether the alleged misconduct was proper
January 25, 2022 CONNECTICUT LAW JOURNAL Page 45

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