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Roth v. La Societe Anonyme Turbomeca France9/30/2003
law does not impose a duty to do so. See Bates v. Law Firm of Dysart, Taylor, Penner, Lay and Lewandowski, 844 S.W.2d 1, 5 (Mo. App. 1992).
The Roths point to Rules 4-4.1 and 4-8.4 as imposing a duty on attorneys to disclose to third parties. Rule 4-4.1 prohibits an attorney from knowingly failing to disclose a material fact when necessary to avoid fraud, but it makes an exception for those cases in which Rule 4-1.6 would prohibit disclosure. Rule 4-4.1(b). Rule 4-1.6 did not provide an exception permitting the attorneys to disclose what they knew, and although Rule 4-8.4 prohibits an attorney from engaging in dishonest, fraudulent, or deceitful conduct, it also declares that an attorney cannot disclose information protected by Rule 4-1.6. Rule 4-8.4(a) and (c).
An attorney who knows that his or her client is making a misrepresentation is in a precarious situation. An attorney should not allow himself or herself to be used to perpetrate civil offenses, but what an attorney must do to avoid running afoul of his ethical obligations is another matter. The Rules of Professional Conduct do not form the basis for a civil cause of action. While they provide standards and violation of them result in disciplinary action, they do not augment an attorney's substantive legal duty or the extra-disciplinary consequences of violating such a duty. See Greening v. Klamen, 652 S.W.2d 730, 734 (Mo. App. 1983); RULES OF PROFESSIONAL CONDUCT, Scope.
We affirm the circuit court's dismissal of Count II of the Roths' petition for failure to state a claim.
Count IV
In their final point, the Roths argue that the circuit court erred in dismissing Count IV of their petition. That count alleged a civil conspiracy among the defendants. They appeal, however, only as to the attorneys. The circuit court determined that a civil conspiracy between an attorney and client is not legally possible because, as agent and principal, they are not legally distinct and cannot conspire with one another. The circuit court also determined that the exceptional circumstances rule did not apply to allow the claim.
A civil conspiracy is an agreement or understanding between at least two persons to do an unlawful act, or to use unlawful means to do an act that would otherwise be lawful. Oak Bluff Partners, Inc. v. Meyer, 3 S.W.3d 777, 780-81 (Mo. banc 1999). A conspiracy is not actionable in its own right because it does not exist apart from the statement of an underlying claim. Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996). The unlawful acts done in pursuit of a conspiracy give rise to the action. Proving the conspiracy concerns only the co-conspirators' liability as joint tortfeasors. Mark VII, Inc. v Barthol, 926 S.W.2d 128, 131 (Mo. App. 1996); Preferred Physicians Mutual Management Group v. Preferred Physicians Mutual Risk Retention, 918 S.W.2d 805, 815 (Mo. App. 1996).
Because an attorney is an alter ego of his or her client, a conspiracy between the attorney and client usually is not possible. Creative Walking, Inc. v. American States Insurance Company, 25 S.W.3d 682, 688 (Mo. App. 2000); Macke, 931 S.W.2d at 176. If, however, an attorney, serving his or her own interest, acts outside the scope of an agency relationship, or if he or she, rather than the client, commits fraud or another intentional tort during the course of his or her representation, the attorney may be liable for conspiracy. Macke, 931 S.W.2d at 176-78.
Neither exception applies in this case. The Roths did not allege that the attorneys acted out of self-interest. Furthermore, the Roths did not appeal the circuit court's dismissal of Count III, which alleged fraudulent concealment by
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