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Toste Farm Corporation v. Hadbury6/5/2002
involved in advising their client how to deal with and resolve his disputes with Morash. As the complaint alleges, Acebes' lawyers not only assisted in drafting the partnership agreement that was the subject of both the federal and state court litigation, but also they advised their client how to respond to the various interpretative disputes that arose in connection with that agreement and its alleged breach. Nevertheless, Morash has accused Acebes' lawyers of committing the torts of maintenance, champerty, and barratry. Morash complains that defendants "prompted" and "promised" to fund the litigation that Acebes filed against him, which Morash believes "constitutes actionable maintenance."
"Maintenance," however, constitutes "officious intermeddling in a suit which in no way belongs to one, by maintaining or assisting either party [to the action,] with money or otherwise to prosecute or defend it." American Hotel Management Associates, Inc. v. Jones, 768 F.2d 562, 570 (4th Cir. 1985) (applying North Carolina law). See also Schwartz v. Eliades, 939 P.2d 1034, 1036 (Nev. 1997); Voiles v. Santa Fe Minerals, Inc., 911 P.2d 1205, 1211 (Okla.1996); McKellips v. Macintosh, 475 N.W.2d 926, 928 (S.D. 1991). By definition, a lawyer for a client involved in a lawsuit possesses a professional interest in how his or her client fares in the lawsuit. Hall, 655 A.2d at 829. But for a plaintiff to state a cause of action for maintenance, the alleged intermeddler must be a stranger to the parties and their dispute. Id. Thus, "[when a] person promoting the suit of another has any interest whatever, legal or equitable, in the thing demanded, * * * he [or she] is in effect also a suitor according to the nature and extent of his [or her] interest." Schwartz, 939 P.2d at 1036.
Here, having drafted the partnership agreement that was at issue in that lawsuit and having served as Acebes' lawyers in connection with its interpretation, implementation, and alleged breach, Acebes' lawyers were scarcely strangers to the Acebes-Morash dispute or to the parties themselves. Moreover, according to Morash's own complaint, they advised their client, Acebes, to pursue litigation to resolve his disputes with Morash. Whether or not the Battle-Fowler attorneys were still serving as Acebes' litigation lawyers when he filed the lawsuit is immaterial. Because they still "had a legally cognizable interest in the subject matter of a suit, prior to engaging in any conduct alleged to constitute * * * maintenance, [they] cannot be guilty of * * * maintenance with respect to such suit." 14 Am. Jur. 2d, Champerty, Maintenance and Barratry ยง2 at 718 (2000). (Emphasis added.) Thus, on this requisite element alone, Morash's claim for maintenance failed to pass legal muster because Acebes' lawyers possessed a legally cognizable interest in the litigation through their present or former representation of their client in connection with the underlying dispute. Thus, for this reason, Acebes' lawyers were not subject to a claim for unlawful maintenance of the litigation against Morash.
The majority suggests that if Morash can prove that Acebes' lawyers advised him to pursue this litigation to avoid their own liability for Acebes' malpractice claims against them, they would have been acting as a party, and not as his counsel, and that this type of arrangement constitutes the tort of maintenance. Yet, in Jones, 768 F.2d at 571, the Fourth Circuit held that no cause of action for maintenance arose when a corporate director encouraged a suit amongst certain shareholders of the corporation on whose board he served as a director, even though his purpose in doing so was to mitigate the effect of a potential judgment from another action. "[The direc
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