“Lawyers owe duties of care and duties of loyalty to their clients. They owe no such duties to adverse parties. Despite this, lawyers sometimes get sued by the parties they act against. For good reason, such claims are treated with scrutiny by the courts. Our adversarial system depends on the ability of lawyers to fearlessly advance their clients’ positions.
In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.
Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” : Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), at para. 16 to 18, motion to set aside administrative order dismissing appeal dismissed, [1996] O.J. No. 4812 (C.A.), leave ref’d [1996] S.C.C.A. No. 326 (husband sued lawyer who acted for his wife in divorce proceedings).
The rule against suing an adverse lawyer is authoritatively stated in The Law of Civil Procedure in Ontario:
The lawyer of record has no duty of care or liability to the opposing party for advising his client to sue or to defend the proceedings, and solicitor-and-client privilege not only protects the communications between lawyer and client, it also protects the lawyer from being sued by the opposing party under the guise of any cause of action for his or her conduct of a case.
This statement is supported by numerous authorities. A sample of reported cases is found in Appendix A. As these cases show, claims against adverse lawyers are frequently dismissed at the pleadings stage or in summary judgment motions.
There is no single settled doctrinal approach to these cases. Sometimes courts rule that they do not disclose a reasonable cause of action and sometimes that they are an abuse of process.”