Litigation Privilege Immunity: For Presuit Communications, It's Not Absolute.

• Author: Lieser, Jeffrey P.

The practice of law is laden with pitfalls that can wake a good litigator up in the middle of the night. Thankfully, there are security blankets that help lawyers sleep soundly. One of those is the litigation privilege--the venerable doctrine that litigants and their counsel are generally immune from liability for statements made during litigation, even when those statements are defamatory or otherwise damaging. (1) Unfortunately, some tossing and turning, and perhaps even an occasional nightmare, remains over what "during litigation" means; specifically, caselaw is not entirely settled about how the privilege applies to presuit notices, letters, and even public records, like claims of lien. For the litigator threatened with suit or actually sued over one of these ubiquitous documents, the answers to such questions could mean the difference between immunity and liability or, at the very least, a lawsuit's early dismissal versus protracted litigation.

Policy Considerations Behind the Litigation Privilege

As the Restatement (Second) of Torts explains, "absolute privileges are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests." (2) The nature of the modern practice of law necessitates that attorneys be among those "certain persons" protected by an absolute, or at least, qualified privilege:

The basis for such ... privileges for lawyers is to permit a free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice. In fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice. (3)

Stated differently, in weighing "competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory [or otherwise wrongful] attacks versus the right of the public interest to a free and full disclosure of facts," (4) the latter outweighs the former. (5)

Origin and Application of the Litigation Privilege in Florida

With the exception of the quasi-judicial unemployment claim process, the litigation privilege is not statutory. (6) Instead, Florida's litigation privilege is based on precedent, with roots in the Florida Supreme Court as early as 1907. (7) In the colorful case of Myers v. Hodges, 44 So. 357 (1907), Hodges filed suit against a corporation and made various allegations in his complaint about the corporation's president, Myers, including that Myers "was and is held as a tricky, dishonorable, unscrupulous and conscienceless man.doing everything in his power to beat [Mr. Hodges] out of the money owing to him, short of swearing to a lie." (8) As one might imagine, Myers took issue with that description of himself and sued Hodges for libel. (9) Myers' claims did not persuade the trial court, and it entered judgment for Hodges. (10) Myers appealed, and the Florida Supreme Court, after a detailed survey of caselaw from England and the United States, affirmed the trial court's holding that a litigation privilege, such as existed in other jurisdictions, should operate in Florida:

[A]ccording to the overwhelming weight of authority, in order that defamatory words, published by parties, counsel, or witnesses in the due course of a judicial procedure, may be absolutely privileged, they must be connected with, or relevant or material to, the cause in hand or subject of inquiry. If they be so published and are so relevant or pertinent to the subject of inquiry, no action will lie therefor, however false or malicious they may in fact be. (11)

The Myers court further held that even if statements were not "relevant or pertinent to the subject of inquiry," they would still be afforded a qualified privilege (rather than an absolute privilege), and would only be actionable if they were malicious, as well as irrelevant. (12) While a qualified privilege defense often allows the speaker or publisher of a defamatory statement to ultimately avoid a plaintiff's claims, it normally creates a mixed question of law and fact that must be resolved by the fact finder. (13) In other words, protracted litigation often results despite a defense of qualified privilege. (14) Furthermore, to be protected, a qualifiedly privileged statement must not be made "to too wide an audience." (15)

Conversely, absolutely privileged communications remain immune from legal action despite the scope of their publication. (16) Moreover, absolute immunity --especially when asserted against a claim that a written communication was wrongful (17)--can be successfully presented in a motion to dismiss. (18)

Development of the Litigation Privilege

The "broad principles of law from Myers outlining the contours of Florida's absolute privilege have ... been reaffirmed by [Florida Supreme Court] on a number of occasions," (19) but Ange v. State, 123 So. 916 (Fla. 1929), stands as the court's next seminal case.

* Ange v. State--In Ange, the Florida Supreme Court considered statements a sheriff made while applying for a warrant before criminal proceedings were pending. (20) The court found the statements absolutely privileged and, in doing so, expanded the definition of "in the course of a judicial procedure," to include actions "necessarily preliminary thereto":

The rule of privilege as applied to statements made in the course of judicial proceedings is not restricted to trials of actions, but includes proceedings before a competent court or magistrate in then due course of law or the administration of justice which is to result in any determination or action by such court or officer. This privilege ... arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto. (21)

The Ange holding is deceptively simple. In practice, even now, nearly 90 years later, courts still grapple with questions about what acts are "necessarily preliminary" to a judicial proceeding. One Florida court has called such acts "steps in the judicial process." (22)

* Pledger v. Burnup & Sims, Inc. --In 1983, the Fourth District Court of Appeal revisited Ange in Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983). (23) Among other things, Pledger answered (and created) some of the questions raised in Ange about what "necessarily preliminary thereto" means.

In Pledger, a corporation's former president, Thomas Pledger, sued the corporation and its current president because of statements made in draft complaints used during settlement negotiations in a case Pledger was involved in, but not a party to. (24) The court noted there "are many examples of publications which are necessarily preliminary to a judicial proceeding" that should receive absolute immunity, including "actions brought under the Florida Tort Claims Act, landlord-tenant actions, certain agricultural claims, various actions brought under the Uniform Commercial Code, insurance claims and other contract actions where the parties have agreed to a notice requirement as a condition precedent to suit." (25) However, the court found that the statements in question were not "necessarily preliminary acts as contemplated by the court in Ange," (26) and that "pre-litigation settlement efforts cannot be considered necessarily preliminary to the institution of judicial proceedings unless required by statute, administrative regulation, or contract." (27) Nonetheless, the Pledger court afforded qualified immunity to the statements in question, stating:

[T]he courts of Florida encourage pre-litigation settlement negotiations. It is in the interest of society to reach equitable and mutually satisfactory resolution of disputes without the necessity of suit.... We hold that this policy reason is sufficiently enhanced, and the parties sufficiently protected, by the qualified privilege. (28)

* Fridovich v. Fridovich--Years later, the Florida Supreme Court again examined Ange in Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992), and again afforded qualified privilege rather than absolute privilege to the statements in question. (29) Fridovich receded from Ange somewhat in holding "that defamatory statements voluntarily made by private individuals to the police or the state's attorney prior to the institution of criminal charges are presumptively qualifiedly privileged," rather than absolutely privileged. (30) The court narrowly applied its holding to the specific "egregious facts" presented. (31) Subsequent decisions by other courts also recognize the narrow application of the Fridovich "qualified privilege." (32) Moreover...