The Limits of the Lawyer Litigation Privilege

Older lawyers will tell you not to talk to the media. There is a good reason for that advice. Generally speaking, anything contained in a pleading filed with a court is privileged under the lawyer’s litigation privilege. (There are exceptions, including bar complaints). So, inside the courtroom you allege that the Defendant committed fraud. Answer: privileged. Inside the courtroom during a trial you tell the jury that the opposing expert did no real work on the case and simply accepted what the defendant told him was true. When the expert sues you for defamation, you can point to the litigation privilege. In closing argument, you tell the jury that the defendant committed fraud. Answer privileged. After a case is over, the other party sues you for defamation. That case will be dismissed and the litigation privilege will apply. Similarly, if the expert witness sues for defamation his case will also be dismissed.

The Restatement (Second) of Torts Section 586 provides that an attorney may “publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” For background on this topic also consult Douglas R. Richmond, “The Lawyer’s Litigation Privilege” 31 Am. J. Trial Advoc. 281 (2007), an excellent and thorough discussion of the cases and case law. Over time as more and more cases have been filed against lawyers by former adversaries, the privilege has expanded beyond defamation to other tort claims arising out of the same conduct such as intentional infliction of emotional distress, negligent infliction of emotional distress, tortious interference with prospective business relations, tortious interference with a contract and other torts. The litigation privilege does not shield lawyers from professional discipline or allow a lawyer to evade judicially imposed sanctions.

The key point is that the litigation privilege applies to statements in pleadings, briefs, memoranda and oral statements before the court. It does not usually apply to statements outside the courthouse.

Mistake No. 1

After you file a complaint do not post it on your website or fax it to a newspaper or blogger. That is an activity outside of the courthouse and it is not privileged. The defendant in the lawsuit may choose to file a defamation case against the lawyer. Such a lawsuit is a long shot but it won’t be any fun defending that lawsuit.

Mistake No. 2

After the hearing ends, you speak to the media on the stairs outside the courthouse. Answer: not privileged. That is why lawyers say things like “No Comment” or “We are evaluating a possible appeal.” Neither statement is defamatory and neither will get you in trouble. Most clients gain little benefit from comments by attorneys.

Mistake No. 3

Don’t criticize any judge or imply that a judge or opposing lawyer is dishonest or evil. This is a statement that you can make: “We disagree with the Judge’s reasoning.” That is an appropriate statement. Any other kind of statement concerning the judge is not privileged and can lead to professional discipline.

If you have a comment to make concerning another party to litigation, make that comment inside the courthouse or in a pleading or brief. Do not make that comment outside the courthouse to the media.

Conclusion

These issues arise all the time. When I was a young lawyer, my mentors told me never to talk to the media, and I have accepted that wisdom for the most part. A few years later a colleague suggested that we fax a copy of a complaint to a newspaper. We discussed the idea and ultimately rejected it. Once you “leave” the courthouse, you should carefully consider what you wish to say and why saying it would help your client. If it won’t help the client, do not make any comments to the media. Do not post a complaint on your website. Do not make promises or predictions about any case you are handling. This world is full of people who wish to share their opinions on social media. As a lawyer, you should be more careful and prudent. Win the case in court and then make a generic comment to the media if you must. Otherwise, keep quiet. It is good for your client and ultimately good for you.

If you have a question about the litigation privilege or the limits of that privilege, do not hesitate to call me. Since 1991, I have encountered numerous touchy situations and I can often provide cautious and prudent advice. My goal in these situations is to keep lawyers out of trouble.

www.http://clintonlaw.net

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