By Gary Blankenship
Attorneys do not have an absolute privilege against making defamatory statements when they interview potential witnesses in preparing a lawsuit, according to the Florida Supreme Court.
In a 4-3 decision, the court majority held that lawyers have a qualified privilege if the alleged defamatory comments “bear some relation to or connection with the subject of inquiry in the underlying lawsuit.” But if the statements are not connected with the underlying matter, “the defendant is not entitled to the benefit of any privilege — either absolute or qualified.”
The February 14 ruling involved an appeal from a Fourth District Court of Appeal ruling in which an attorney hired to defend a defamation action allegedly made defamatory comments about the plaintiff while investigating his client’s case.
The trial judge questioned whether an absolute privilege should apply in the case, but nonetheless granted a summary judgment motion for the attorney, holding that the Supreme Court had held that “statements made during the course of a judicial proceeding are entitled to an absolute privilege,” in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994).
The Fourth DCA affirmed, with the majority of the panel holding “that statements made while ‘[i]nterviewing a witness in preparation for and connected to pending litigation [are] absolutely privileged’” as though they were made in the courtroom or in a deposition.
Justice Barbara Pariente, writing for the court majority, recounted the common law doctrine that holds that statements in court proceedings are usually subject to absolute privilege. In Myers v. Hodges, 44 So. 357 (Fla. 1907), the court spelled out that the privilege attaches only to statements connected or relevant to the case or subject to inquiry.
The court upheld that principle in succeeding cases, although it clarified that absolute privilege did not extend to witnesses making false statements to police as part of a criminal investigation. In the Levin case, an insurance company had a law firm disqualified from representing an opposing insurance company in a lawsuit, on the grounds the firm lawyer handling the case was likely to be called as a witness and placed the lawyer on its witness list.
After the case was concluded without the lawyer or law firm being called, the firm in federal court sued the insurance company that had it disqualified, alleging a tortious interference. In an advisory opinion to the U.S. 11th Circuit Court of Appeals, the Florida Supreme Court held that the absolute privilege applied and that the trial court’s contempt and other powers were an adequate remedy for abuses.
Pariente wrote that the current case, though, was distinguishable from Levin and earlier cases because the statements in question were not made in court documents, in depositions, or in the courtroom but rather in interviews without the presence of a judge or opposing counsel.
“In contrast to the panoply of judicial oversight protections envisioned by our precedent ranging from Myers to Levin, which promote the free flow of information, these safeguards are either unavailable or far less effective where, as in this case, the alleged defamatory statements are made by an attorney to a nonparty witness during an out-of-court, informal investigation, which may take place without a recording or outside the presence of the opposing party or counsel,” Pariente said.
“Indeed, one problem with ex-parte, out-of-court, informal investigations is that no formal record arises out of the transaction, which may create a dispute regarding what was even said, as is the case here. Absent safeguards, the value of the absolute privilege as a mechanism for discovering truth decreases while the potential for damage to a person’s reputation increases.
“This shift creates an unacceptable imbalance among these competing interests, heightening concerns for abuse.”
The court concluded that in such situations, statements have a qualified privilege, which require a showing of “express malice,” that the primary intent in making the statements was to damage the plaintiff’s reputation.
Pariente also wrote that the qualified privilege does not apply to statements “if those statements are not connected with or related to the subject of inquiry in the underlying lawsuit.”
In the case before the court, Pariente said the statements were related to the underlying case and hence the qualified privilege applies, and the trial court was wrong to dismiss the defamation suit based on absolute privilege.
Justices Peggy Quince, Jorge Labarga, and James Perry concurred.
Justice Fred Lewis and Justice Charles Canady each dissented with separate opinions and Chief Justice Ricky Polson joined in Canady’s dissent.
Lewis wrote that he would not use qualified privilege in such cases and would examine whether the case was within the current litigation privilege.
“I would first conclude that inquiry made as part of the litigation investigation and discovery is within the concept of litigation and can be absolutely privileged,” Lewis wrote. “Second, however, there are genuine issues of material fact that must be resolved by a jury concerning what statements were actually made, and only then can it be determined whether the alleged statements were inherently related to or connected with the underlying litigation or beyond the litigation to be subject to relief.”
Canady wrote that he found no conflict between the case and Levin and would dismiss the case for lack of jurisdiction. He also contended, “The majority compounds the error of deciding this case without a proper basis for the exercise of jurisdiction by reversing the district court based on an issue that the petitioners never presented in the district court.”
He argued that the decision in Levin did not address whether the activity occurred in the course of a judicial proceeding, and hence there was no conflict with the case before the court.
“The majority simply ignores the fact that the petitioners never argued to the district court that attorney[’s] . . . comments were subject to only a qualified privilege and thus actionable if uttered with express malice,” Canady wrote.
“The issue of a qualified privilege arose for the first time in these proceedings when it sprang forth from Judge [Martha] Warner’s dissenting opinion [in the Fourth DCA opinion]. But the presentation of an issue in a dissenting opinion does not preserve the issue for our review.”
The court ruled in DelMonico, et al. v. Traynor, case no. SC10-1397. The full text of the opinion can be found on the court’s website.