Recently, I was asked whether a former paralegal who poached law firm clients could be subject to a tortious interference claim. Here was my answer.
The General Rule(s)
With very limited exceptions, lawyers are given more leeway, and are less susceptible to tortious interference claims for poaching clients from a former employer than other professions.
1) NY Rule of Professional Conduct 1.16 (b)(3) provides as follows:
Declining or Terminating Representation (b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when:
In short, this sets forth the general rule that a client can discharge a lawyer at any time.(3) the lawyer is discharged
In the same vein, Rule 5.6(a)(1) is designed to protect the ability of clients to choose their counsel freely and to protect the ability of counsel to choose their clients freely.” N.Y. State 858 ¶ 7 (2011); see Rule 5.6, Cmt. [1] (“An agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.”).
Possible Limited Exception for Tortious Interference with Prospective Advantage
In the recent First Department case of Ginarte Gallardo Gonzalez & Winograd v. Schwitzer, 193 A.D.3d 614, 148 N.Y.S.3d 56 (1st Dep't 2021), the Appellate Division, First Department held that a former, now rejected, law firm's complaint alleging tortious interference stated just enough to withstand a motion to dismiss at the initial stage of the case because of the unusual allegations that were set forth in the supporting affidavits.
In turning back the defendants' motions to dismiss, the court pointed to proof that the defendants engaged in criminal acts, more specifically, violations of Judiciary Law §§ 479 and 482, which prohibit using "runners" to engage in ambulance chasing to unlawfully solicit clients away from the plaintiff law firm. Thus, the court reasoned, if proven true, the defendants' violations of these laws would constitute impermissible competitive behavior that would negate the defendants' economic interest defense, and allow the claim to survive.
The Economic Interest Doctrine
Briefly, the economic interest doctrine states that regular competition is considered "justified," and a valid defense when it comes to tortious interference claims.
To that end, New York's Court of Appeals articulated the rule as follows:
"The existence of competition may often be relevant, since it provides an obvious motive for defendant's interference other than a desire to injure the plaintiff; competition, by definition, interferes with someone else's economic relations. Where the parties are not competitors, there may be a stronger case that the defendant's interference with the plaintiff's relationships was motivated by spite. But as long as the defendant is motivated by legitimate economic self-interest, it should not matter if the parties are or are not competitors in the same marketplace." (Carvel Corp. v Noonan, 3 NY3d at 191.)
The Takeaway
In short, it is possible for a former law firm whose clients were poached to frame a complaint for tortious interference in a manner that may survive an initial motion to dismiss on the pleadings. That said, unless they have hard, concrete proof that the defendants were using illegal, criminal means to solicit the clients, they will almost certainly lose on summary judgment or at trial.
