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The Takeaway

Missouri bars non-clients from suing an attorney unless the attorney acted with intentional wrongdoing (e.g., fraud, collusion, threats). This qualified privilege from being sued is an affirmative defense. The Missouri Court of Appeals recently dismissed a case with prejudice[i] because the plaintiff’s own allegations showed that the affirmative defense applied. To avoid this outcome, a non-client suing an attorney must now proactively avoid the affirmative defense by alleging facts that support the exception of intentional wrongdoing.

Background

Plaintiff, Branson’s Nantucket, LLC, an owner of a luxury resort where vacationers can purchase timeshares, filed suit against attorneys at Timeshare Law Offices, LLC and Neally Law, LLC (collectively “Defendants”). In the suit, Plaintiff alleged tortious interference with a business expectancy and civil conspiracy. The basis of these claims was that 21 timeshare owners had stopped paying their mortgages and/or maintenance fees based on Defendants’ advice.

Defendants moved to dismiss, claiming Plaintiff’s petition failed to allege facts that, if true, would prove the absence of the justification element of tortious interference. In response, Plaintiff argued it adequately alleged tortious interference by stating “Defendants acted without justification.” The trial court dismissed Plaintiff’s claims against Defendants with prejudice. Plaintiff appealed.

Analysis of Appellate Court Rule

Plaintiff argued it had adequately pled the ultimate fact of absence of justification. It also asserted it wasn’t required to assert evidentiary facts that would demonstrate exceptional circumstances. The Court of Appeals disagreed with that argument.

First, the Court noted that any plaintiff must prove the defendant lacked justification to interfere with the contract. When a defendant has a legitimate interest in the contractual relationship, lack of justification requires pleading and proving that the defendant used wrongful means to interfere. This holding would apply only to claims for tortious interference and would apply to non-attorney defendants.

The Court further explained that Missouri recognizes a qualified privilege from suit to protect attorneys when acting for clients. It noted that the rationale for such privilege “has long been recognized by the Missouri Supreme Court, which acknowledged that ‘[i]f attorneys cannot act and advise freely and without constant fear of being harassed by suits and actions at law, parties could not obtain their legal rights.’” However, as it is only a qualified privilege from suit, non-clients can overcome it by showing exceptional circumstances exist.

Exceptional circumstances exist if the attorney was actually acting for his own benefit or is guilty of “fraud, collusion, or a malicious or tortious act.” The exceptional circumstances rule focuses on the attorney’s conduct because a client’s misconduct cannot be imputed to the attorney. The Court of Appeals noted that Missouri holds that intentionally wrongful conduct by an attorney, even if undertaken for a client, “is beyond the conditional or qualified privilege of an attorney.”

While it is an affirmative defense, the Court of Appeals found that the qualified privilege can impact how a non-client must plead claims against attorneys. For support, it cited official immunity cases: “[W]hen the factual allegations of a petition establish a public employee’s challenged actions were within the scope of her official duties and there is no allegation of malice, the defendant may invoke the affirmative defense of official immunity in a motion to dismiss for failure to state a claim. …To survive such a motion, a plaintiff must plead factual allegations affirmatively establishing an exception to official immunity.” In other words, a petition that alleges facts that, if true, would prove an affirmative defense must also allege facts avoiding that defense.

This secondary holding applies to more than tortious interference claims. Instead, it sets forth a broad pleading rule that “where the complaint itself establishes the existence of attorney privilege [from suit], the plaintiff must plead facts to demonstrate the applicability of the exceptional circumstances rule—that the defendant engaged in fraud, collusion, or malicious or tortious acts.” Therefore, the Court affirmed that where a petition alleges facts showing the plaintiff is a non-client suing an attorney for acts taken on behalf of a client, it must allege facts that, if true, would prove that exceptional circumstances exist to state a claim against the attorney.

Plaintiff then argued that even under this pleading standard, its petition should survive as it alleged the Defendants failed to advise their clients of the risks associated with non-payment. The court reasoned that this allegation failed to show exceptional circumstances existed because the petition did not allege that such failure was intentional or done maliciously to harm their clients. Nor did they allege Defendants acted as part of a scheme to benefit themselves. Therefore, this allegation, at most, supported alleging the attorneys acted negligently rather than intentionally. For that reason, the Court found this allegation was insufficient to overcome the qualified privilege from suit or to show the absence of justification needed to support a tortious inference claim.

As for intentional wrongdoing, the petition alleged that the Defendants used false promises and statements to induce their clients to stop paying Plaintiff and that Defendants were acting to further their own business interests. The Court of Appeals noted these allegations did allege the type of intentional acts by an attorney that the exceptional circumstances rule requires. However, it found these allegations were insufficient as they were conclusory and, therefore, did not plead facts overcoming the qualified privilege.

Based on the above, the Court of Appeals upheld the dismissal of the tortious interference count. It also upheld the dismissal of the civil conspiracy claim because conspiracy is a form of vicarious liability for an underlying tort. For that reason, stating a claim for conspiracy requires pleading an underlying tort, which Plaintiff failed to do given the dismissal of its tortious interference claim.

Conclusion

The Court of Appeals affirmed that when a petition’s allegations prove an affirmative defense, the petition must allege facts proving an exception to the defense. Here, the complaint established that Plaintiff was a non-client suing Defendants for acts within the scope of the attorney-client relationship. Therefore, its petition had to allege facts showing Defendants' conduct fell within the "exceptional circumstances" exception to attorneys’ qualified immunity from suit. The Court concluded Plaintiff failed to state a claim against Defendants because it did

[i] Branson's Nantucket, LLC v. Timeshare Law Off., LLC, 2025 Mo. App. LEXIS 47, 2025 WL 303845.