May 16, 2013 Top Story

Lawyers May Face Liability for Ex-Parte Defamatory Remarks

Potential defamatory statements may be subject only to a qualified privilege

M. Derek Harris

Zealous advocacy has its limits and lawyers who go beyond the limit and make defamatory statements may be held liable for those statements. The Florida Supreme Court made this point in holding that Florida’s absolute privilege for defamatory statements in the course of judicial proceedings does not extend to ex parte statements of counsel made while interviewing potential witnesses.

Liability for Defamation Depends on the Circumstances

In Delmonico v. Traynor [PDF], defense counsel and his law firm were sued for defamation for statements the attorney made in the course of investigating a separate defamation action he was hired to defend. The plaintiff alleged that while investigating the underlying defamation action, defense counsel made numerous false statements about the plaintiff to potential witnesses, including telling various witnesses that the plaintiff was being “prosecuted for prostitution.” In his complaint, the plaintiff alleged that, as a result of the attorney’s statements, he lost customers, income, profits, business, and investment opportunities.

The attorney and his firm moved for summary judgment, arguing the claims against them were barred because the attorney’s alleged statements were protected by Florida’s absolute privilege, which allows litigants to avoid liability for defamatory statements made in the context of judicial proceedings. The trial court granted summary judgment to the defendants. The Florida Fourth District Court of Appeal affirmed, holding that, regardless of the circumstances, statements made during a witness interview “are absolutely privileged if the statements bear some relation to or connection with the pending matter.”

The Florida Supreme Court accepted review and considered whether attorneys have absolute immunity from liability for defamatory remarks made during ex parte questioning of potential non-party witnesses while investigating a pending case. The Florida Supreme Court overturned the lower appellate court decision and remanded the case for further proceedings. The court rejected the absolute privilege defense and held that “a qualified privilege instead should apply to ex-parte, out of court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.”

The court found that if there is no relation or connection to the case, there is no privilege at all. This is because the purpose of absolute immunity is not advanced by shielding a lawyer from liability for defamatory statements made when the opposing party is not present and able to be heard.

Zealous Advocacy Must Have Its Limits

“I think this is a very important holding,” says Joseph M. Hanna, Buffalo, cochair of the ABA Section of Litigation’s Minority Trial Lawyer Committee. “Attorneys need to be protected, within reason, when questioning witnesses. If we do not have that qualified privilege, then how can we zealously represent our clients?” asks Hanna. “This is something that affects the livelihood of attorneys throughout the country in dealing with potential witnesses,” he adds.

“The main policies that are in conflict here are the vigilant, zealous advocacy that you want to encourage on behalf of litigants on the one hand,” and, “on the other side, the balance has to be struck with the rights of the other parties, witnesses, and general public at large to be free of defamatory injuries to their reputations,” observes Brian W. Koji, Tampa, cochair of the Section of Litigation’s Employment and Labor Relations Committee. “Those concerns seem to directly contradict each other so a balance has to be struck,” explains Koji.

“I agree with the overall decision because it allows you to maintain a privilege relating to the litigation,” says Damian E. Thomas, Miami, cochair of the Section’s Solo and Small Firm Committee. “You could successfully question a nonparty witness or get information from a nonparty witness, and the qualified privilege would cover you for everything that’s reasonable that you would be doing relating to the case,” explains Thomas.

Gather Facts and Avoid Making Statements

“In the end, if you’re a defendant in one of these cases, and you prove your qualified immunity, then you win the case. But you will feel that you didn’t have much immunity because you will have to spend out-of-pocket money that you will never get back,” warns Koji. To avoid this type of situation, “stick to questions as opposed to making statements and allegations,” offers Thomas. “I would even shy away from making statements to witnesses about what your target did or what your allegations are. I think you can get around it just by asking questions about what they know about the case,” he adds.

“Obviously, we all want to zealously represent our clients. That’s what we are paid to do. That’s our main goal,” states Hanna, but “common sense is very important.” “If you have experience practicing law, then you should be able to use your common sense and know how far, ethically, you can take something,” says Hanna. If you don’t know the permissible limit, you could end up on the wrong side of the “v” in a defamation action.

M. Derek Harris is an associate editor for Litigation News.

Keywords: defamation, zealous advocacy, litigation privilege

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