IV. Conduct Versus Communications

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Conduct Versus Communications

A recurring issue is whether the litigation privilege applies only to lawyers' statements or whether it also encompasses conduct related to judicial proceedings. "The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. . . . That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature."²⁸⁷ A lawyer who punches an opponent in the nose certainly cannot claim that the litigation privilege shields him against criminal or civil liability for battery,²⁸⁸ but disputes in this area are seldom so clear cut.²⁸⁹ For example, is a lawyer's act of wrongfully filing liens a form of communication to which the litigation privilege attaches, or is it conduct to which the privilege ought not apply?²⁹⁰ What about levying on property where the underlying judgment was procured based on perjured declarations of service?²⁹¹ If a party files false expert witness disclosures in a lawsuit, is that protected communication or a fraudulent act to which the privilege should not attach?²⁹² Is the act of filing a motion to disqualify an opposing lawyer privileged?²⁹³ If lawyers tape record or videotape the inappropriate deposition conduct of opposing counsel for use in a motion for sanctions, is the act of recording privileged?²⁹⁴

Consistent with the trend toward expanding the litigation privilege beyond defamation claims to other claims arising out of the same conduct, courts generally see no reason to distinguish between communications made during the litigation process and conduct occurring during the litigation process.²⁹⁵ The litigation privilege generally applies to lawyers' actions just as it does to their statements, assuming that all other elements required for the privilege are met.²⁹⁶ Applying the litigation privilege to lawyers' conduct in pending or threatened litigation in addition to their litigation-related communications is perfectly consistent with the purposes for recognizing the privilege.²⁹⁷ For example, a lawyer's action in filing a motion and the factual research or investigation leading up to the motion are tightly linked to the statements contained in the motion. It is sometimes difficult to distinguish a lawyer's acts from the communications to which they relate. Lawyers' statements in pleadings, questions in depositions, and arguments in court all build on conduct in investigations and discovery. Many business disputes cannot be reasonably litigated without inspections of another party's books and records.²⁹⁸

Unarco Material Handling, Inc. v. Liberate²⁹⁹ is an interesting case in point. Liberato arose out of a soured business relationship between Kerry Steel and Unarco. Kerry Steel sold steel products to Unarco for years, but the relationship ended when a dispute arose over Unarco's financial obligations. Kerry Steel ultimately sued Unarco as a result. The parties settled the case. William Liberato was Unarco's president during the litigation and the negotiations that led to the settlement. Liberato resigned from Unarco in 2005 after the settlement. In connection with his resignation, Liberato entered into a retirement agreement with Unarco that included far-reaching confidentiality obligations.³⁰⁰

Kerry Steel's president, Kerry Nagle, later became suspicious that Unarco had provided inaccurate information to his company to induce it to settle. Nagle shared his belief with Kerry Steel's lawyer, Steve Cohen. Knowing that Liberato was no longer employed by Unarco, they asked him if he would be willing to furnish a sworn statement concerning the negotiations and settlement. Liberato and his lawyer, however, worried that Unarco would consider a statement to be a breach of the confidentiality provisions in Liberato's retirement agreement, with resulting harsh financial ramifications for Liberato. Moreover, Liberato might be liable for any damages allegedly suffered by Unarco. Accordingly, Cohen worked with Liberato's lawyer to negotiate an indemnification agreement whereby Kerry Steel would indemnify Liberato for any damages that might result from his sworn statement, and would further make him whole should Unarco contend that his statement violated the confidentiality provisions in his retirement agreement.³⁰¹ Liberato then gave a sworn statement before a court reporter in which he answered questions posed by Nagle and Cohen.³⁰²

When Unarco learned of...