The New Jersey Appellate Division has issued an important and thoughtful opinion on the limits of the litigation privilege. The case is Brown v. Brown, No. A-0384-21 (February 3, 2022). The case concerns a family feud. The survivors of Michael Brown had a dispute over certain rental payments for a parcel of real property. Under a 2004 settlement, the title to the property was vested in the plaintiffs. In turn, they were obligated to “assign” to Patricia Brown the sum of $3500 a month for life. Several years later, the plaintiffs began negotiating a sale of the property. Patricia Brown filed a complaint in probate and requested the entry of an order requiring her the plaintiffs (her step children) to show cause why the 2004 settlement should not be enforced. She also recorded a lis pendens. The stepchildren then sued Patricia Brown alleging that the notice of lis pendens constituted tortious interference with an existing contractual relationship, tortious interference with a prospective economic advantage, abuse of process and malicious prosecution.

Brown moved for summary judgment arguing that the litigation privilege. The court denied summary judgment in part on the ground that the litigation privilege did not apply to the lis pendens. Brown appealed. The appellate court held that the litigation privilege did insulate Patricia Brown from the claims based on her notice of lis pendens.

The court explained “What was misconceived in the trial court was what the litigation privilege protects. The privilege does not protect a party from the tortious impact caused by a party’s prior suit; it protects only statements made during the prior suit.” Id. at 7. “It does not protect a litigant from a subsequent suit seeking redress for injuries caused by an adversary’s very act of commencing and prosecuting the earlier suit if that suit was frivolous, vexatious or tortious.” Id at 8.

As for the lis pendens, the court held that the statements contained in the lis pendens were protected by the litigation privilege. The litigation privilege, however, did not insulate a party from suit for damages caused by the filing of an “unauthorized, inaccurate, or false notice of lis pendens.”

The court held that the statements in the lis pendens were privileged. They were the equivalent of in court statements. The court affirmed the denial of summary judgment on the tortious interference claims “because the litigation privilege protects only statements made in judicial proceedings and not the commencement of frivolous, vexatious or tortious lawsuits.”

Conclusion: The litigation privilege protects the lawyer and his client from liability for statements made in court or in litigation documents. It does not protect the lawyer or the client should they choose to make an out-of-court statement. It does not provide immunity from liability for the filing of frivolous lawsuits.

Ed Clinton, Jr.