An appellate court has recently clarified the issue of the extent to which statements made by lawyers, in pursuing lawsuits, are entitled to absolute privilege protection from claims of defamation, tortious interference with business relationships or other types of torts. In Delmonico v. Traynor and Akerman, Senterfitt & Eidson, 35 Fla. L. Weely D 1331 (Fla. 4th DCA, June 16, 2010), the Fourth District Court of Appeal addressed a circumstance in which an attorney, in interviewing individuals who he believed could be witnesses to a lawsuit, made allegedly defamatory statements to the witnesses, by accusing the opposing party of supplying prostitutes to an owner of a company, and engaging in “unethical business practices.” In a non-judicial setting, these statements, which allegedly were false, would likely be the subject of actions for defamation, as well as tortious interference with advantageous business relationships.
In this case, these statements were made in connection with, and in the course of, an existing judicial proceeding, in that the individual making these statements acted as defense counsel in a related proceeding. Thus, the lower court was faced with the boundaries in which the litigation privilege applied. Under the litigation privilege, absolute immunity is afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior, so long as the act has some relation to the proceeding. Under these circumstances, the falsity or maliciousness of the alleged statements is irrelevant to the analysis: if the statement was made in furtherance of, or in the course of, a judicial proceeding, the attorney cannot be sued, no matter how false or malicious the statement might be, as long as it “has some relation to the proceeding.”
Noting that the reason for the rule of absolute immunity is that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation, The Court found that participants in civil litigation must be free from the fear of later civil liability as to anything said or written during ligation so as not to shill the actions of the participants in the immediate claim. In examining the types of cases in which the absolute immunity doctrine applied, this privilege applies even to conversations, or interviews, of prospective witnesses and an attorney, as long as the interview or conversation has some relation to the litigation. The court recognized that, if an attorney crosses the boundaries of what is appropriate and what is not, the Florida Bar, and its rules regulating the practice of law provide an appropriate remedy.
In an extremely well written opinion, the court struck a positive blow in favor of the freedom of the judicial system. In a day in which attorneys are under siege throughout society, and it seems like a minefield simply navigating one’s way through the trapdoors of the judicial system, the Fourth District Court of Appeal reaffirmed the simple notion that an attorney should have the freedom to represent his (or her) client zealously, without the fear that he or she will be sued by the opposing litigant based upon some unintended malfeasance. As the court concluded, “without the shield of absolute immunity, our legal system would be further diminished by attorneys worrying, consciously or not, whether they will be made subject to litigation for merely inquiring into areas deemed controversial, unfair, of unjust by the opposing side. Counsel must be able to inquire unfettered into areas with some relation to the pending litigation, without the concern of further litigation hanging over them like a ‘sword’ and having that ‘sword’ impede the advocacy of counsel.”
This case impacts a broad spectrum of cases, including any case where the conduct of the parties in litigation may be at issue in a latter case. Specifically, in bad faith insurance cases, many sides will attempt to use the conduct of the parties during the litigation on the coverage question when the bad faith suit is prosecuted. Under this case, such an argument would be extinguished.
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