Can a lawyer sue opposing counsel for defamation while still handling the case where it happened?

Plain-English summary

The committee was asked whether a lawyer may sue opposing counsel for defamation while continuing to represent a client in the pending lawsuit during which the alleged defamation occurred. It answered that such a suit is permissible only in limited circumstances.

The committee noted that the law has long disfavored libel and slander actions based on statements made by opposing counsel or witnesses in a judicial proceeding, citing a line of New York cases, but, because it does not pass on questions of law, it expressed no view on the scope of that privilege. It held that the policies disfavoring such actions carry ethical implications making it especially inappropriate for a lawyer to bring such a suit while still acting as counsel in the same litigation (citing N.Y. State 456 (1977)). Because of the privilege, few such suits could properly be maintained under DR 7-102(A)(2) and DR 2-109(A)(2), which forbid advancing or accepting employment to advance claims the lawyer knows or that are obviously unwarranted under existing law, absent a good-faith argument for changing the law; the committee said the same principle applies to suits a lawyer brings on his own behalf.

The committee reasoned that bringing such a suit would likely increase ill-feeling and unseemly wrangling between counsel in the still-pending case, to the potential detriment of the client and the judicial process (EC 7-37), and that the client's consent would be irrelevant; there would also be an obvious temptation to use the defamation suit for collateral advantage. Applying Canon 9 and EC 9-2 (avoiding even the appearance of impropriety and acting to promote public confidence where explicit guidance is lacking), it concluded a lawyer should be extremely reluctant to bring such a suit during the pending litigation. In the rare instance where the action is ethically justified under DR 7-102(A)(2) and DR 2-109(A)(2), the lawyer should not bring it until the litigation ends or the statute of limitations is about to run, unless the lawyer, with the client's and the court's consent, withdraws from the original action (DR 2-110(A)(1), (C)(5)). The question was answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (meritorious claims are now governed by Rule 3.1, conflicts involving the lawyer's own interests by Rule 1.7, and withdrawal by Rule 1.16). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sue opposing counsel for defamation during the same case?

A: Under this opinion, only in limited circumstances. The committee held a lawyer should be extremely reluctant to do so while still representing a client in the pending litigation where the alleged defamation occurred.

Q: Why is bringing the suit during the case a problem?

A: The committee reasoned it would increase ill-feeling between counsel to the detriment of the client and the judicial process, and create a temptation to use the suit for collateral advantage, implicating Canon 9's appearance-of-impropriety standard.

Q: When could such a suit properly be brought?

A: In the rare case where it is warranted under DR 7-102(A)(2) and DR 2-109(A)(2), the lawyer should wait until the litigation ends or the limitations period nears, unless the lawyer withdraws with the client's and the court's consent.

Background and rules framework

The opinion applies DR 7-102(A)(2) and DR 2-109(A)(2) (not advancing claims unwarranted under existing law), EC 7-37 (avoiding ill-feeling between counsel), Canon 9 and EC 9-2 (appearance of impropriety), and DR 2-110(A)(1), (C)(5) (permissive withdrawal). The current Model Rule analogues are Rule 3.1 (meritorious claims and contentions), Rule 1.7 (conflict with the lawyer's own interests), and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 3.1 (meritorious claims and contentions)
• MR 1.7 (conflict of interest: current clients, including the lawyer's own interests)
• MR 1.16 (declining or terminating representation)
• NY Canon 9; EC 7-37, EC 9-2; DR 2-109(A)(2), DR 2-110(A)(1), DR 2-110(C)(5), DR 7-102(A)(2)

Cases:

• Martirano v. Frost, 25 N.Y.2d 505 (1969); Wiener v. Weintraub, 22 N.Y.2d 330 (1968); Andrews v. Gardiner, 224 N.Y. 440 (1918), on the privilege for statements in judicial proceedings

Other opinions cited:

• N.Y. State 456 (1977): suits between counsel during pending litigation

See also

• NY State Bar Op. 478: Contacting an unrepresented adverse party in a divorce
• NY State Bar Op. 492: A part-time DA prosecuting a former private client

Source

• Landing page: https://nysba.org/opinion-483/