Lawyers are absolutely immune from civil liability, such as slander or libel (otherwise known as defamation) for statements or conduct that may injure, offend, or otherwise damage an opposing party during the litigation process. It is called the “litigation privilege” and shields an attorney regardless of malice, bad faith, or ill will of any kind. It sounds unfair, but like immunity provided to the government from suits, it originated at the very beginning of English jurisprudence for the purpose of protecting the advocacy system and its participants.
It was well described here:
[T]he adversary system’s penchant for conflict and drama, coupled with high stakes and behind-the-scenes confidences, seem to put even greater temptations on trial lawyers than on desk lawyers to use questionable tactics to secure victory. R.J. Gerber, Victory vs. Truth: The Adversary System and Its Ethics, 19 ARIZ. ST. L.J. 3, 23 (1987).
All but two states recognize absolute immunity for lawyers involved in litigation with little variation from state to state.
The Restatement formulation, adopted in nearly every state, describes the litigation privilege as follows:
An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. RESTATEMENT (SECOND) OF TORTS § 586 (1977); see, e.g., Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332 (D.C. 2001); Kennedy v. Zimmermann, 601 N.W.2d 61 (Iowa 1999) (following Restatement); see also 50 AM. JUR. 2D Libel & Slander § 193 (1989).
It doesn’t sound fair, but it protects advocacy related to the Court proceedings.
But Hold On…
The Florida Supreme Court broke it down further in February 2013. It concluded there essentially are three layers of immunity in this opinion. It breaks it down as follows:
We hold that Florida’s absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege – either absolute or qualified. DelMonico v. Traynor, __ So.3d __ (Fla., No. SC10-1397, 2/14/2013) (see also DelMonico v. Traynor, 50 So.3d 4, 7 (Fla. 4th DCA 2010) and Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994)).
No Immunity in Statements to Press, Blogs, Etc.
Today’s world is very different from the days of yore. Social networking sites like Twitter and Facebook, 24-hour television and radio news channels, internet blogs, and periodicals have given the public somewhat unfiltered, instant access to newsworthy information, some might describe as an “insatiable lust.”
Combine that with certain lawyers lacking media training or desiring their “15 minute of fame,” and you are stepping outside of the litigation privilege. Attorneys who accommodate this lust for updates by providing updates to the press may find themselves and their firms named in claims for defamation by the very parties they originally sued. This especially applies if the attorney utilizes the pleadings as a litigation tool by transmitting them to the news source without solicitation, especially where the lawyer interjects their own biased commentary regarding the witnesses, facts, or judicial pleadings when interviewed by the press.
Worse still, when they do so “speaking for their client,” they could also find themselves in a strange situation of finger pointing between lawyer and client, which might severely impact the attorney-client privilege long thought as sacred. Can you just repeat a lie and be okay? The case law says no, not if it is malicious or in reckless disregard of the truth.
This really changed in 1991. In Sunstar Ventures, LLC. v. Tigani (10 A.2d 1341 Del. Supr. 1991), the Superior Court for Delaware explicitly followed federal law in recognizing that the publishing of a judicial pleading to the press extinguishes the absolute litigation privilege thereof. It drew a line in the sand for judicial roles of justice and media, finding that immunity will not protect an attorney who wishes to litigate his case in the press.
With that decision, Delaware joined the overwhelming majority of states that adopted such a position, including Arizona, Florida, New Jersey, Pennsylvania, Oregon, Utah, New York, Delaware, and California finding the privilege is lost, while only Texas found that the privilege was not waived. We have not yet had the time to survey this matter and this data is fairly old, but the trend is clear: if you are talking to a reporter, you better be careful.
Ethical Issues, Too
Under the model ethical rules, an attorney also has an ethical duty not to seek out publicity that would likely interfere with the fairness of the underlying litigation and the duty not to do unnecessary harm to an adversary. Involving the press may be a litigation tactic, but if that was a tactic it was undertaken by an attorney at his own risk.
We have recently had to engage in countering disparaging facts leaked to the media in a reckless attempt to effect credibility. It’s always a slippery slope, but you see it more and more: high-profile criminal cases led by attorneys with an insatiable desire to try those cases–and chiefly their clients’ credibility–in the media. Jose Baez regularly built up Casey Anthony and Mark O’Mara and others have engaged in a very public PR campaign both for George Zimmerman and against Trayvon Martin.
Courts have repeatedly stated lawyers may not make or participate in making an extra-judicial statement which he/she/they expect(s) will be disseminated by means of public communication which will likely interfere with the fairness of an adjudicative proceeding. Waging a war of credibility does exactly that if one does not stick to the facts. Essentially, an attorney who wishes to litigate his case in the press will do so at his own risk.
The court’s opinion in Missner, and recent Florida rulings, should act as a huge warning sign to all law firms which engage the press or the internet as part of their litigation strategy. The consequences of such tactics potentially include defamation actions that not only distract the lawyer from the job he/she/they was/were retained to do, but also exhaust resources and may adversely affect a firm’s standing with insurance carriers and their existing clients.