Simms v. Seaman was just released by the Appellate Court. It is important to understand that the case is based on allegations – not on evidence or facts. Given the procedural posture of the case – a ruling on a motion to strike – the court takes the plainiff’s allegations as true and contrues them in the light most favorable to the plaintiff. The court’s decision deals purely and simply with questions of law. It would be grossly unfair and unprofessional for lawyers to draw any conclusions about the parties, especially the defendants, who are lawyers.
The question in the title of the post, “What does it mean to be a lawyer?” is intended to be provocative. But I think it only fair to suggest at the outset that the based on the court’s decision, the question is irrelevant, or almost irrelevant. One answer to the irrelevant or almost irrelevant question is this: in the context of the allegations of fact that the court assumed to be true and construed in the light most favorable to the plaintiff to be a lawyer means absolutely nothing other than to be totally immune from claims of common law fraud based on statements or omissions made by counsel in the course of judicial proceedings.
The opinion is worth reading and re-reading and re-reading and thinking about and talking about – at least I think so. The opinion turns on a question of public policy. If one studies the opinion and thinks about it enough to get to the point of fully appreciating the public policy question, then one may also want to consider the question in the title of this post, “What does it mean to be a lawyer?” What should it mean? I have not done that yet. I am only at the beginning of trying to think this case through.
One of the questions the opinion does not address and therefore can not answer is this: who bears the financial risk of an intentional failure to disclose material information one has an obligation to disclose? And how is the amount of that financial risk – how are the damages to the injured party – calculated? And, finally, regardless of the legal theory used, who is liable for paying for the cost of reacting to and attempting to remedy an intentional failure to disclosure material information one has a duty to disclose?
Thanks to Professor (retired formally but not otherwise) Jim Trowbridge for bringing this case to my attention. Professor Trowbridge bears absolutely no responsibility for my decision to put up a post about Simms v. Seaman much less for the content of this post.