5-3 Defamatory Statements by Counsel

• Jurisdiction: United States

5-3 Defamatory Statements by Counsel

5-3:1 Non-Actionable

Defamatory statements made by a lawyer in the course of judicial proceedings are absolutely privileged regardless of how false or malicious they might be, as long are they are relevant to the subject of inquiry. In Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co.,²³ this defense was held to negate claims for slander, libel, perjury, and tortious interference with a business relation-ship.²⁴ Subsequently, in Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole,²⁵ the Florida Supreme Court extended the privilege to all causes of action.²⁶

In AGM Investors, LLC v. Business Law Group, P.A.,²⁷ a law firm was sued for abuse of process and "related torts" resulting from its filing of five liens on behalf of a condominium association. The trial court entered summary judgment in favor of the law firm based on the absolute litigation privilege, "reasoning that the filing of each of the claims of lien was necessarily preliminary to the enforcement of the association's lien for unpaid assessments in a judicial proceeding and, as a result, that the absolute litigation privilege barred AGM's claims as a matter of law."²⁸

Observing that the issue had not been decided in Florida, the appellate court looked to out-of-state cases and found that "it is well-accepted elsewhere that tortious conduct will not be protected by the litigation privilege as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration."²⁹ After examining the record, it reversed the grant of summary judgment on the fourth and fifth liens:

AGM's complaint alleged facts suggesting that the scope of Business Law Group's actions that were necessarily preliminary to enforce the association's lien ended either at the filing of the third claim of lien or at its withdrawal from the representation of AGM. Business Law Group alleges otherwise, but it did not present any summary judgment evidence showing that a new foreclosure action on its purported lien for unpaid assessments was contemplated after a pending foreclosure action on that very same lien was concluded. Nor did it produce summary judgment evidence to explain why, notwithstanding its withdrawal from the case, it had any reason to record the fourth and fifth claims of lien. Business Law Group therefore failed to demonstrate why, as a matter of law, those lien filings were necessarily preliminary to any subsequent judicial proceedings to the exclusion of the related factual questions that remain unresolved. The record as it stands presents genuine, material factual disputes relevant on that issue, and the trial court erred in entering summary judgment.³⁰

Other cases similarly have refused to apply the privilege in situations where the lawyer's conduct raises questions.³¹

5-3:2 Investigation Exception

An "investigation exception" to the absolute privilege rule now exists due to DelMon-ico v. Traynor.³² Justice Pariente described the issue in DelMonico as "whether Florida's absolute privilege, which shields judges, counsel, parties, and witnesses from liability for alleged defamatory statements made in the course of a judicial proceeding, extends to statements made by an attorney during ex parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit."³³

The underlying case arose from claims of defamation by DelMonico against business competitor Donovan Marine, Inc. ("DMI"). DelMonico asserted that Crespo, a DMI sales representative, had told a number of DelMonico's clients that DelMonico had supplied prostitutes to the owner of a company doing business with DMI in a successful effort to lure customers away...