High Court to Define Limits of Immunity for Attorneys : The law: How far does the well-established legal principle of privilege for lawyers extend? The California Supreme Court is due to hear a case that could give an answer.

Enmeshed in a painful divorce, Santa Rosa physician Barry Neil Silberg proposed that a psychologist be retained to counsel family members and recommend child-custody and visitation arrangements.

With the consent of both sides, Margaret Anderson, the attorney for Silberg’s wife, selected a candidate she said was qualified and independent. But what Anderson failed to disclose, according to Silberg, was that she was romantically involved with the psychologist she had recommended for a sensitive role in the dispute.

Now, in a case that sounds like an episode from “L.A. Law,” the state Supreme Court will decide whether Silberg can proceed with an $11-million damage suit against attorney Anderson for concealing her alleged romance in order to gain an unfair advantage for her client and provide business for her lover.

Silberg charges that the psychologist’s subsequent report to a Sonoma County Superior Court was “biased, wholly inaccurate and defamatory,” preventing him from obtaining visitation rights and estranging him from his children.

Lawyers in the bitterly fought battle are sparing little ammunition. Anderson’s attorneys call Silberg’s damage suit “spiteful” and belittle his lawyers’ legal papers for misspellings and “atrocious grammar.” Silberg’s attorneys dismiss such criticisms as “irrelevant,” and urge the justices not to give the legal profession “a license to deceive the innocent public.”

The case, to be argued before the state high court in Los Angeles on Tuesday, could result in an important new exception to the far-reaching immunity from such suits the law provides for lawyers and other participants in judicial proceedings.

A state Court of Appeal, reversing a contrary decision by a trial court, ruled in July, 1988, that Silberg could proceed with his claim against his wife’s lawyer. The legal privilege for attorneys does not apply where their conduct is “blatantly unethical” and does not promote “the interests of justice,” the appeals court held.

Attorneys for Anderson are asking the high court to overturn the appeal panel, warning that the decision could destroy vital protections designed to allow lawyers to freely and vigorously represent their clients without risking civil liability for what they say and do. Unethical or illegal conduct by lawyers can be resolved in separate Bar disciplinary proceedings or through criminal charges, they say.

“If this type of legal action is sanctioned by the Supreme Court, then we all better learn another profession,” said William B. Boone, a retired Superior Court judge representing Anderson in the case.

“You’ll have to be daring or foolish to go to court--or have unlimited resources for cases that will never end,” Boone said. “The party that loses the first suit will file a second suit. The party that loses that suit will file a third suit. And on and on it will go until one side is exhausted.”

Anderson is drawing support from a group of psychiatrists and psychologists who are often used by judges and lawyers to evaluate child-custody cases in Los Angeles Superior Court. The group fears that the appeal court ruling creating a liability for lawyers could open the way for retaliatory suits by disgruntled parents unhappy with their professional recommendations in custody disputes.

The lawyer for the psychiatrists and psychologists, Steven G. Drapkin of Los Angeles, is concerned that the appeal court ruling, if upheld, could be applied in a wide range of cases where experts--such as labor arbitrators--are retained to help solve disputes.

“This case is immensely important with respect to the legal profession as well as the whole court system because of the impact it could have on all dispute-resolvers,” Drapkin said.

Lawyers for Silberg reply that the dire warnings by Anderson and her allies are unwarranted “scare tactics”--and are asking the justices to uphold the Court of Appeal ruling as a legitimate way of deterring improper conduct by lawyers.

They say that litigants such as Silberg should be entitled to adequate compensation for the costs and emotional distress they suffer as victims of unethical actions.

The physician and his children underwent 12 lengthy counseling sessions, divulging their innermost feelings to a psychologist that they found out later had a blatant conflict of interest because of his relationship with the attorney on the other side, Silberg’s attorneys said.

“The court should take a fresh look at the issue of privilege--the facts of this case call for it,” said William B. Daniels II of Sebastopol, a lawyer for Silberg.

“Here we have the wife’s attorney living with the man hired to be the independent medical expert in that portion of the divorce relating to the issue of custody,” Daniels said. “The privilege against being sued shouldn’t extend that far. You can see the unfairness of it.”

Silberg filed his suit against Anderson in 1985, charging the lawyer with negligent infliction of emotional distress in concealing her relationship with the psychologist, Dr. Robert E. Adler.

Attorneys for Anderson, without responding to the allegations concerning her relationship with Adler, asked that the case be dismissed on grounds her conduct as a lawyer was protected by a legal privilege against such suits. Superior Court Judge William L. Bettinelli agreed with Anderson and rejected Silberg’s suit.

Meanwhile, according to lawyers in the case, the State Bar of California investigated the charges of improper conduct against Anderson but took no disciplinary action.

Silberg challenged Bettinelli’s ruling before a state Court of Appeal in San Francisco. The three-judge panel, in an opinion by Appellate Justice Jerome A. Smith, overturned the decision, saying that Silberg was entitled to try to prove his claims against Anderson at a trial.

Smith, joined by Appellate Justices Allison M. Rouse and John E. Benson, acknowledged that state law has generally protected judges, lawyers and litigants from civil suits for their conduct in judicial proceedings. For example, even perjury is protected from a civil suit, even though a perjurer can be charged in separate criminal proceedings.

Exceptions to immunity have been made only for suits for malicious prosecution or for certain other improper acts by lawyers and litigants--such as filing slanderous legal documents for the sole purpose of having them published by the news media.

The aim of such immunity, recognized in California courts for more than 100 years, is to provide access to the legal system without fear of civil liability for what is said and done in court.

But the appeals court held that, broad as it is, the privilege would not apply where the conduct at issue occurs outside of court, does not further the legitimate aims of the litigation and conflicts with “the interests of justice.”

“Conduct with no goal other than to circumvent the normal judicial process impedes the interest of justice and cannot be accorded the benefits of absolute immunity,” Smith wrote.

If Anderson recommended Adler in order to achieve some personal objective--such as expanding his business--or to deceitfully gain the upper hand for Silberg’s wife, “her behavior can hardly be characterized as promoting the interests of justice,” Smith said.

But if Anderson had a “proper and legitimate purpose” for her actions, her conduct is protected, the justice said. “The question is an evidentiary one to be resolved by (a judge or jury).”

In their subsequent appeal, attorneys for Anderson argued that the lawyer is entitled to absolute protection for all conduct “reasonably related” to her representation of her client. The motives for such conduct are beside the point and should not be a basis for liability, they said.

In reply, Silberg’s lawyers contended that Anderson is not entitled to immunity because she breached her duty to refrain from acts that could mislead the courts in resolving the child-custody and visitation question in the divorce case.