The Litigation Privilege: Who, What, When and Where?

Anything you say can and will be used against you. Well, not always. Attorneys, litigants, and experts may be immune from liability arising from certain acts and statements made in connection with the pursuit of litigation in light of the litigation privilege. This privilege can provide an important and useful defense for professionals. But what is it and when may it be asserted? Read on to find out.

The litigation privilege, or the “judicial privilege,” is a deeply rooted doctrine established to allow attorneys, experts and parties to litigate freely without fear of claims based on their conduct in the context of that litigation. Today, there are more lawsuits directed at adversaries and their professionals arising from conduct during the course of litigation. Perhaps due in part to this trend, the use of the litigation privilege has seemingly increased and gained a stronger foothold.

A strong body of law has developed which may protect the professional and her client. The following themes may apply in your jurisdiction:

  • The litigation privilege is an absolute privilege yielding complete immunity from defamation and sometimes fraud allegations. If applicable, an individual may be immune from liability.
  • In many jurisdictions, the litigation privilege extends to both defamatory communications made during the course of the judicial proceeding and to out-of-court statements that are related to the proceeding. In other words, the privilege extends to statements made in all phases of the litigation. See Lerette v. Dean Witter Organization Inc., 60 Cal. App. 3d 573, 577 (1976).
  • The privilege extends to all participants in the litigation including witnesses. Accordingly, the litigation privilege has been found to protect accounting firms from suit for expert reports both filed with the court and statements made by accounting firms during the course of pre-suit investigations. Meyers, Harrison & Pia, LLC v. Nancy Riella, 2013 Conn. Super. LEXIS 2583 (November 7, 2013).
  • In many jurisdictions, the litigation privilege extends to statements that are knowingly false as well as claims of fraud so long as the fraud claims relate to conduct that occurred during the course of the judicial proceedings. See Simms v. Seaman, 308 Conn. 523 (2012).

These points demonstrate that in the appropriate circumstances the litigation privilege can prove to be a useful tool to defend claims asserted against attorneys and other professionals. The privilege provides a quick and important defense that may be asserted immediately before engaging in expensive litigation. Of course, the litigation privilege does not provide an invitation to defame or engage in fraud – professionals should be mindful of their ethical obligations at all times. However, when faced with a lawsuit filed by an adversary or others arising from conduct during litigation, the litigation privilege may provide a key defense.