CHAPTER 9 - 9-7 PRIVILEGES AND IMMUNITIES

• Jurisdiction: United States

9-7 Privileges and Immunities

9-7:1 The Absolute Judicial Proceedings Privilege

The absolute judicial proceedings privilege or litigation privilege sweeps wide, potentially barring a variety of claims arising from statements made in litigation and judicial proceedings, so long as the statements are related to the subject matter of the litigation.⁸⁹

In Simms v. Seaman,⁹⁰ the Connecticut Supreme Court upheld the ruling of the Appellate Court that an absolute privilege barred a claim of fraud by a plaintiff against attorneys who allegedly made intentionally false statements on several occasions to the court regarding a client's financial status in a family case. In Simms, the court looked at the long history of the litigation privilege for defamatory statements, and the rationales behind the privilege, including encouraging a witness to speak openly and freely in connection with a judicial or quasi-judicial proceeding. The court observed that a claim of fraud does not have the built-in protections that claims for a vexatious litigation or malicious prosecution have, such as a requirement that the underlying claim terminate in favor of the plaintiff. The court noted that it had previously held that the privilege barred the tort of intentional interference with contractual or beneficial relations because that tort, like defamation, does not have the protections found in claims for vexatious litigation or malicious prosecution. The court so concluded:

[B]ecause fraudulent conduct by lawyers, while strongly discouraged (1) does not subvert the underlying purpose of a judicial proceeding, as does conduct consisting of abuse of process and vexatious litigation, for which the privilege may not be invoked, (2) is similar in essential statements, which were protected by the privilege (3) may be adequately addressed by other available remedies, and (4) has been protected by the litigation privilege in federal courts . . .⁹¹

The court further looked to the tort of intentional infliction of emotional distress, where the litigation privilege was held to apply. In Idlibi v. Ollennu,⁹² the Appellate Court applied the Simms decision to claims of abuse of process, legal malpractice, malicious prosecution and negligent and intentional infliction of emotional distress. The court held that the litigation privilege barred the claims for legal malpractice and negligent and intentional infliction of emotional distress, but not the claims for abuse of process and malicious...