Lawsuits by Non-Clients: Some are Unavoidable

March 15, 2024

Steve Schwartz

By Steven H. Schwartz

As published in the February 2024 edition of Missouri Lawyers Weekly

Lawyers are sometimes sued by adversaries or by other people they did not represent. There are only limited situations when those claims can have merit. In most situations they are meritless and unavoidable. That is why it is important for lawyers to carry professional liability insurance that will defend the lawyer against all claims arising out of the practice of law.

Non-meritorious claims that cannot be avoided

Under Missouri law, an adversary cannot sue a lawyer for negligence, and, in most cases, a lawyer cannot be sued for conspiring with their client for committing wrongdoing (e.g., fraud, tortious interference, etc.) because a principal cannot conspire with its agent. The lawyer and the client are considered one entity. An attorney can be held liable for conspiring with their client only when the attorney is acting for their own self-interest, outside the scope of the attorney-client relationship. See, e.g., Macke Laundry Service Ltd. Partnership v. Jetz Service Co., Inc., 931 S.W.2d 166 (Mo. App. 1996).

Lawyers cannot be sued for defamation for statements they make in judicial proceedings, including statements made in pleadings filed with the court. Those statements are subject to an absolute privilege. See, e.g., Henry v. Halliburton, 690 S.W.2d 775, 780 (Mo. banc. 1985).

Avoidable claims by non-clients

The two most common situations when a non-client can bring a meritorious lawsuit against someone else’s lawyer are: (1) when the non-client is essentially a third-party beneficiary of the attorney-client relationship; and (2) when the non-client sues for malicious prosecution or abuse of process. Both of these cases are hard to prove.

Third-party beneficiary cases

The first type of case was explained by the Missouri Supreme Court in Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624 (Mo. banc. 1995). In Donahue, the intended beneficiaries of certain transfers the lawyer was instructed to complete sued the lawyer because the lawyer failed to complete the transfers before the death of the client. Since the transfers were not complete before death, they were not effectuated. The Supreme Court set forth a new rule stating that, in limited situations, a third-party that was intended by the client to benefit from the attorney-client relationship can sue the lawyer as long as the criteria of a six-part balancing test is met. Unfortunately, the vagueness of the balancing test setup by the Supreme Court make it next to impossible for a practitioner to determine whose interests have to be protected. In general, if it is clear that the lawyer was supposed to do something to benefit the non-client, and the failure to complete the project correctly directly caused damage to the non-client, the non-client can sue. In Alberts v. Turnbull Conway, P.C., 641 S.W.3d 370, 375-76 (Mo. App. 2022), the Donahue test was limited to situations when the decedent had made an unequivocal choice to transfer property. The Alberts Court stated that it did not extend to situations where the decedent could have changed his mind before he died.

Malicious prosecution and abuse of process

The other type of case that a non-client can bring against a lawyer is a suit for malicious prosecution or abuse of process. These cases are not rare but malicious prosecution is extremely hard to prove against lawyers under Missouri law. The standards for proving lack of probable cause and malice against a lawyer who filed a lawsuit on behalf of the client are much higher than the standards of proof when suing the litigant. See, e.g., Henderson v. Cape Trading Co., 289 S.W. 332 (Mo. 1926); Macke Laundry at 178-79; Zahorsky v. Griffin, Dysart, Taylor, Penner and Lay, P.C., 690 S.W.3d 144 (Mo. App. 1985).

Malicious prosecution claims against lawyers are notoriously difficult to prove and there are very few reported cases that have been successful. Nevertheless, the ethics rules and the civil rules of procedure in state and federal court require lawyers to perform a reasonable investigation before filing a lawsuit to avoid filing frivolous claims. If lawyers comply with that standard they should not be liable for malicious prosecution or abuse of process.

Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal mal-practice cases, malicious prosecution cases and ethics complaints for more than 30 years. He can be reached at