III. Understanding the Privilege

LibraryProfessional Responsibility in Litigation (ABA) (2016 Ed.)

III. Understanding the Privilege

A. Framing the Key Issues

Understanding lawyers' litigation privilege requires examination of several key issues. First, to what actions or claims does the privilege apply? Although crafted in connection with defamation claims, the purposes supporting application of the privilege extend to other causes of action as well. Second, lawyers handling litigation seldom work alone; they are often aided by legal assistants and investigators. It is therefore reasonable to ask whether the lawyer's litigation privilege applies only to lawyers or whether it also shields their agents. Third, for the privilege to apply there must be a judicial proceeding. Clearly a court proceeding is a judicial proceeding, regardless of whether it is in a trial or appellate court, but what about administrative proceedings and arbitrations? Do these forms of dispute resolution qualify as judicial proceedings for litigation privilege purposes? Fourth, when and where does the privilege attach? The obvious concern is whether the privilege attaches to communications in advance of expected litigation. Fifth, for the privilege to apply to a communication, a lawyer must be participating as counsel in a proceeding. Is this requirement as straightforward as it appears? Sixth, the defamatory matter must bear "some relation to the proceeding" for the privilege to attach.43 What does this relatedness requirement entail?

B. Actions and Claims to Which the Privilege Applies

The litigation privilege originally developed to protect lawyers against defamation claims. Courts have expanded it to bar most other civil claims against lawyers based on allegedly defamatory statements related to judicial proceedings, reasoning that the purposes underlying the privilege "would be nullified if individuals barred from bringing defamation claims could seek damages under other theories of liability."44 That expansion persists, as Loigman v. Township Committee of the Township of Middletown45 illustrates.

Larry Loigman was a community activist in Middletown, New Jersey, who attended public hearings in a civil service appeal filed by Middletown police officer Robert Oches, who claimed that the Township wrongfully refused to promote him to police chief. The Township was represented by its special labor counsel, Thomas J. Savage. The presiding administrative law judge (ALJ) granted Oches's motion to sequester all witnesses for the Township, other than two who were assisting Savage in presenting the Township's case. After the ALJ granted that motion, Savage moved to sequester Loigman on the ground that he might be a witness.46 Loigman pitched a fit, arguing that he was not a witness and asserting that Savage's statements about his possible testimony were false.47 The ALJ ordered that Loigman be sequestered, while expressing his belief that he was powerless to enforce the order. The hearings continued over several months and Loigman regularly attended them notwithstanding the sequestration order. "Despite all the sound and fury," Savage never sought a trial court order enforcing the ALJ's sequestration order and never called Loigman as a witness.48

Loigman sued Savage and the Township, alleging that "Savage deliberately made false statements to the ALJ with the improper design of having the ALJ exclude [him] from the . . . hearings."49 Loigman asserted that this conduct violated his First Amendment right to attend a public proceeding and was therefore actionable under 42 U.S.C. § 1983. The defendants moved for summary judgment, arguing that Savage's sequestration motion, "even if motivated by ill will and supported by misrepresentations," fell within the litigation privilege.50 The trial court denied the motion, reasoning that Savage's alleged misrepresentations aimed at excluding Loigman from a public proceeding were a constitutional violation and not privileged conduct. Loigman prevailed at trial and the defendants appealed. A lower appellate court affirmed the trial court, finding that Savage's conduct was not privileged given his "misrepresentations and intentional misuse of the sequestration motion," the latter having no purpose other than to deprive Loigman of his right to attend a public hearing.51 The case then ascended to the New Jersey Supreme Court on the Township's motion, Savage having died before the appeal.

To determine whether the litigation privilege could be a defense to a § 1983 claim, the court first had to determine whether the privilege was recognized in common law tort actions when the Civil Rights Act was enacted in 1871.52 Noting that the privilege has deep roots in the common law tracing back to medieval England, was expressed early in American common law, and had long been embedded in New Jersey law, the court was persuaded that the privilege was firmly rooted in the common law in 1871, the year the Civil Rights Act was passed.53 That left the court to decide whether it could harmonize the litigation privilege with "the history and purposes of § 1983."54 This it did.

The court observed that the Supreme Court had recognized judicial, prosecutorial, and witness immunity in § 1983 actions, and that the arguments arrayed in favor of those immunities applied equally to the litigation privilege.55 Additionally, to address creative pleading, courts have extended the litigation privilege to unconventional causes of action against lawyers acting within the judicial process.56 In New Jersey, the court noted, the litigation privilege protects lawyers not only from defamation actions, but also from a host of other tort claims. For all these reasons, the court concluded that the litigation privilege also protects against § 1983 claims.57

Next, the court was required to determine whether Savage's motion fell within the scope of the litigation privilege. The motion was a communication in a judicial proceeding and Savage was authorized by law to make it. Witness sequestration furthers litigation objectives and is logically related to the action in which it is sought. Accordingly, the litigation privilege attached to the sequestration motion.58 The fact that Savage's sequestration motion may have been improper and the fact that he lied about the basis for it did not affect the court's privilege analysis.59 The court did not condone improper litigation tactics in reaching its conclusion, and specifically noted that lawyers who engage in unethical conduct at trial may face professional discipline regardless of the application of the litigation privilege.60 But the fact that a few unscrupulous lawyers may escape civil liability by virtue of the litigation privilege so that honest lawyers can practice freely is "the necessary price that must be paid for the proper functioning of our judicial system, a system that requires attorneys to vigorously and fearlessly represent their clients' interests."61 Furthermore, the fact that Savage's conduct in filing the sequestration motion was privileged did not leave Loigman powerless. He could have forced Savage to attempt to enforce the sequestration motion in a trial court, thus creating a forum for his First Amendment claim, and he could have filed an ethics complaint against Savage.

The court concluded that the litigation privilege cloaked the defendants with absolute immunity against Loigman's claims.62 It therefore reversed the lower appellate court and remanded the case to the trial court to enter judgment in favor of the defendants.

In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole,63 the Florida Supreme Court was called upon to decide whether the litigation privilege shielded lawyers from liability for violating the Florida Consumer Collection Practices Act through letters sent on behalf of lenders in foreclosure proceedings. A lower appellate court had held that the privilege did not apply because the suit against the lawyers was initiated as a statutory cause of action, and that under the separation of powers doctrine, "'a judicially created policy such as the judicial immunity rule must not be used to limit the application of a legislatively created, statutory cause of action.'"64 The Florida Supreme Court reversed the lower appellate court, explaining that the policy reasons underlying the litigation privilege do not depend on the nature of the action against which the privilege is asserted.65

Importantly, the policy reasons for adopting a rule of immunity for actions taken in judicial proceedings focus on the judicial nature of the proceedings, not on whether they were initiated under common law or statute. It is the perceived necessity for candid and unrestrained communications in those proceedings, free of the threat of legal actions predicated upon those communications, that is at the heart of the rule. The nature of the underlying dispute simply does not matter.66

The Echevarria court held that the litigation privilege applies to "all causes of action, whether for common-law torts or statutory violations," and accordingly quashed the contrary decision of the lower appellate court.67

Loigman and Echevarria are consistent with courts' application of the litigation privilege in other contexts.68 Although the litigation absolute privilege still shields lawyers against defamation claims,69 and it is commonly invoked in defamation cases, the purposes that the litigation privilege serves are not necessarily tied to particular causes of action. Accordingly, courts have extended the litigation privilege to other causes of action based on the same conduct, including aiding and abetting a client's breach of fiduciary duty,70 negligence,71 negligence per se,72 legal malpractice claims by non-clients,73 civil conspiracy,74 tortious interference with business expectancies,75 tortious interference with business relationships,76 tortious interference with contracts,77 tortious interference with prospective economic ad-vantage,78 injurious falsehoods,79 intentional infliction of...

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