Litigation Privilege Lineage
The Simms court summarized a lengthy history of the litigation privilege and immunity. Absolute immunity for defamatory statements made during judicial proceedings is rooted in medieval England and is considered ‘‘as old as the law’’ itself. English courts recognized the need to bar persons accused of crimes from suing their accusers for defamation. Additionally, the Simms court noted that English courts reasoned that attorneys should not be burdened with the duty to examine the truth or falsity of pertinent information because “counsel has a special need to have his mind clear from all anxiety.” Finally, English courts disregarded the relevance or irrelevance of the defamatory statements to the issue in dispute. Courts reasoned that remedies other than lawsuits were available to parties aggrieved by malicious statements or conduct during litigation.
Most Jurisdictions Offer Immunity for Relevant Statements
The Connecticut Supreme Court confirmed that the rationale supporting the absolute privilege for pertinent defamatory statements by attorneys during judicial proceedings in most American jurisdictions mirrors that of the English courts. The court also noted that courts in many American jurisdictions have followed an approach that has strengthened the litigation privilege. Conversely, at least 12 jurisdictions have abrogated the litigation privilege for claims of fraud by enacting statutes for that purpose, the court acknowledged.
Privilege Not Unlimited in Scope
Absolute immunity does not, however, protect attorneys against claims alleging the pursuit of litigation for the unlawful, ulterior purpose of inflicting injury on the plaintiff and enriching themselves and their client, despite knowledge that their client’s claim lacked merit, the court cautioned. Such conduct constitutes the use of legal process in an improper manner or primarily to accomplish a purpose for which it was not designed. Absolute immunity also does not bar claims against attorneys for vexatious litigation or malicious prosecution.
Connecticut’s high court ultimately concluded that the appellate court correctly determined that attorneys are shielded by the litigation privilege from claims of fraud because fraudulent conduct by attorneys, while strongly discouraged (1) does not subvert the underlying purpose of a judicial proceeding, as does conduct constituting abuse of process and vexatious litigation, for which the privilege may not be invoked; (2) is similar in essential respects to defamatory statements, which are 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, including the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit for exactly the same reasons that defamatory statements are protected.
The high court also held that the appellate court properly rejected the plaintiff’s claim of intentional infliction of emotional distress, which was a derivative of his fraud claim. The court observed that abrogation of the litigation privilege to permit fraud claims could open the floodgates to a wave of litigation in Connecticut’s courts, challenging attorneys’ representations, especially in highly emotional cases or cases with pro se plaintiffs.
Zealous Representation Has Limits
A dissenting opinion in the case argues that the duty of zealous advocacy has its limits and that, as officers of the court, attorneys have specific duties not to lie or withhold evidence. The dissent also distinguishes between fraud and defamation, stating that fraud is a far more serious offense. The dissenting opinion offered a novel solution to the problem, suggesting that the privilege, while strong, might be eliminated in cases where a court or disciplinary body has already sanctioned the lawyer for fraud or presented false evidence to the tribunal.
“The majority’s concern about protecting lawyers from suit by opposing parties plainly has a great deal of appeal, allowing a litigant to sue the opposing party’s lawyer for inflicting emotional distress in the course of litigation, or saying things that the litigant deemed false would appear to run counter to that lawyer’s obligations to zealously advocate for his or her client,” opines John C. Martin, Chicago, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee. “Our adversary system would be hamstrung if lawyers had to worry about being sued merely because an opposing party’s feeling were hurt or the party did not agree with the substance of a lawyer’s arguments,” Martin adds.
“That said, I am not sure the majority gives enough credit to the competing concerns. As the dissent [PDF] points out, the duty of zealous advocacy has its limits. A rule affording litigants unfettered rights to enforce ethical duties against opposing counsel by bringing fraud or other claims against attorneys has problems given the obvious concern that disappointed litigants might bring such claims, as a matter of course, after a decision that went against them,” explains Martin. “I do not know that the majority offers any suggestion as to why a privilege must attach even after a tribunal has determined that a lawyer did, in fact, violate his or her duties of candor to a court.”
“The court was trying to pick its way through the thicket of what is in and what is out of bounds,” according to Bradford S. Babbitt, Hartford, a member of the Section of Litigation’s Content Management Committee, who has litigated the issue himself in Connecticut’s state courts and has seen how it can be used for good and ill. “We live in a society where the desire for vengeance is strong. The court of vexatious litigation is strong. The court must be careful about what is actionable as we do not want lawyers to be timid in their representation or to be looking over their shoulders when they act in good faith.”
Oran F. Whiting is an associate editor for Litigation News.