Appeals Court limits scope of litigation privilege.

Byline: Matthew L. McGinnis, Gregory L. Demers and Andrew M. Bellis

The litigation privilege historically has provided broad protection to parties and their lawyers from liability for statements made during or in anticipation of litigation, including statements deemed inaccurate, offensive and potentially defamatory by opposing parties.

The privilege offers attorneys the freedom necessary to zealously represent their clients without fear that their allegations, however meritorious, could trigger a countersuit.

While this privilege is often described as "absolute," a recent decision by the Appeals Court reveals the limits of the doctrine, offers important guidance on what constitutes a "quasi-judicial proceeding" under Massachusetts law, and presents a stark reminder to counsel to investigate their clients' claims thoroughly and well before litigation commences.

In Patriot Group LLC v. Edmands, No. 17-P-1397 (Mass. App. Ct., Nov. 13, 2019), plaintiff Patriot Group brought claims for defamation stemming from a letter that defendant Bruce Edmands, a lawyer, wrote on behalf of a client engaged in a contentious bankruptcy proceeding with Patriot Group.

Edmands was not representing his client in the bankruptcy proceeding and expressly limited his engagement to finalizing the letter and sending it.

Patriot Group alleged that the letter falsely claimed that Patriot Group had committed tax fraud and that Edmands' client had filed two whistleblower claims based on that tax fraud with the IRS and the Securities and Exchange Commission.

Due to time constraints, Edmands allowed his client to put together a first draft of the letter, which he reviewed and revised, and did not examine the applicable IRS code and whistleblower statutes before sending.

Edmands' client then republished the allegedly false statements from the letter in widely disseminated internet postings. One such post expressly referenced the letter Edmands sent to Patriot Group's counsel. Patriot Group then filed a complaint against Edmands for defamation.

On a motion to dismiss, the Superior Court concluded that the litigation privilege applied to all alleged defamatory statements from the letter which was allegedly drafted in anticipation of filing whistleblower claims and dismissed the complaint.

The Appeals Court reversed. It observed that there was no indication that the whistleblower claims were ever actually filed with either the IRS or SEC, much less that Edmands was representing...