Renewed Focus on U.S. Standards and Rules for Liability for Aiding and Abetting Torts
Liability for aiding and abetting tortious conduct is back in focus due to legislation proposed by Senator Specter that would overturn Stoneridge. A post on the D & O blog post collects current nformation, also with links also to Pointof Law. Past GlobalTort posts are collected under the topic aiding and abetting.
One has to wonder why financial professionals thunk they can ealistically argue they are especially deserving of protection against this common law cause of action that is not as radical as some claim. In Illinois, for example, well-regarded Jenner & Block litigated and lost the Thornwood appellate decision regarding an aiding and abetting claim against the firm in connection with a client engagement. . Key excerpts are as follows;
"In Illinois, a claim for aiding and abetting includes the following elements:
"(1) the party whom the defendant aids must perform a wrongful act which causes an injury; (2) the defendant must be regularly aware of his role as part of the overall or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation." Wolf v. Liberis, 153 Ill. App. 3d 488, 496 (1987)(recognizing the elements of claims for aiding and abetting and concert of action but failing to find liability where there were no allegations that the codefendant agreed to assist or substantially assisted in the commission of tort resulting in the plaintiff’s injury).
Further, the Restatement (Second) of Torts controls recovery under the theory of concert of action in Illinois. Wolf, 153 Ill. App. 3d at 496. It provides: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." Restatement (Second) of Torts §876 (1979).
Although Illinois courts have never found an attorney liable for aiding and abetting his client in the commission of a tort, the courts have not prohibited such actions. In Reuben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300 (1995), for instance, the court considered a claim of aiding and abetting made against one defendant and his attorneys. While not specifically considering whether the claim could be maintained against the attorneys as a matter of law, the court implicitly accepted that such a claim could be maintained when it held that there could be no liability because the underlying conduct involved a breach of contract, not a tort. Brauer, 275 Ill. App. 3d at 310.
Similarly, Illinois courts recognize that claims for conspiracy may be maintained against attorneys where there is evidence that the attorneys participated in a conspiracy with their clients. See, e.g., Bosak v. McDonough, 192 Ill. App. 3d 799, 804-05 (1989) (recognizing conspiracy claim against attorney but finding insufficient evidence to impose liability). Accordingly, we see no reason to impose a per se bar that prevents imposing liability upon attorneys who knowingly and substantially assist their clients in causing another party’s injury. As we have recognized, " ‘[o]ne may not use his license to practice law as a shield to protect himself from the consequences of his participation in an unlawful or illegal conspiracy.’ " Celano v. Frederick, 54 Ill. App. 2d 393, 400 (1964), quoting Wahlgren v. Bausch & Lomb Optical Co., 68 F.2d 660, 664 (7th Cir. 1934). The same policy should prevent an attorney from escaping liability for knowingly and substantially assisting a client in the commission of a tort."