Attorneys in the Crosshairs: Limits of the Litigation Privilege

A recent decision helps to define the limitations of the absolute litigation/judicial privilege and serves as a reminder that attorneys are not immune from defamation suits.  Notably, attorneys may be on the wrong end of a defamation claim for out-of-court statements concerning ongoing litigation.  The litigation privilege and the judicial privilege provide an absolute defense from defamation suits relating to certain in-court statements.  However, the protections may not apply outside of formal court proceedings according to a recent decision by the Florida Supreme Court.

In Delmonico v. Traynor, the Florida Supreme Court ruled that the absolute litigation privilege did not extend to defamatory statements made by an attorney during out-of-court witness questioning.  While investigating and conducting interviews of potential witnesses, the attorney allegedly defamed his adversary and a separate defamation suit ensued.  The second lawsuit was quickly dismissed by the lower court on the grounds that the attorney’s statements were subject to an absolute privilege. The appellate court disagreed and refused to extend an absolute litigation privilege to out-of-court statements.  The court reasoned that in the context of in-court statements, the allegedly defamatory conduct is transcribed and therefore affords more protection.  On the other hand, statements outside of a formal proceeding — such as ex-parte, informal investigations – lack certain safeguards and increase the propensity for reputational damage.  This, the court said, outweighed any benefits afforded by the litigation privilege.

This ruling serves as a reminder of the limitations of the litigation privilege.  The more remote the statement from a formal proceeding, the less protection that will be afforded.  Attorneys should always be wary of any statements regarding an adversary, specifically during informal investigation lest an attorney find herself in the crosshairs of a defamation suit.

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