The Business of Law and Tortious Interference

Alex Long, University of Tennessee College of Law

Abstract

One frustrating feature of the interference torts is the difficulty in defining precisely when an intentional interference becomes "tortious." While there has been no shortage of proposals to better define the interference torts, there is widespread uncertainty and dissatisfaction concerning the current state of the law. Attorneys have not been spared from the confusion. However, it is on the business side of the practice of the law, rather than the practice side, that attorneys are more likely to actually be held liable for tortious interference. In general, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully "stolen" a client or otherwise interfered with the attorney's "property." However, the risk that courts run in being too quick to classify such action as "improper" interference is that they may undermine two fundamental goals of the law governing lawyers: informed client decision making with respect to the goals of representation and informed client choice with respect to who will conduct the representation. This Article discusses the special problems that interference claims may present when both parties are attorneys and the relationship in question is an attorney-client relationship. The Article explores several reoccurring fact patterns involving attorney liability for tortious interference, including interference in the form of settlement of a client's claims, interference by a rival attorney, interference by an attorney providing advice to a represented client, and interference by an attorney who is, or was, associated with a plaintiff-attorney. This Article argues that the question of whether an attorney's interference is "improper" in these contexts should hinge less on whether a plaintiff's "property" interest in maintaining its relationship with a client has been disrupted and more on whether the defendant's conduct furthers or frustrates the goals of informed client decision making and informed client choice.