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Litigation Privilege Immunity: For Presuit Communications, It’s Not Absolute

Featured Article

Illustration of man holding shield of immunity by Barbara Kelley

The practice of law is laden with pitfalls that can wake a good litigator up in the middle of the night. Thankfully, there are security blankets that help lawyers sleep soundly. One of those is the litigation privilege — the venerable doctrine that litigants and their counsel are generally immune from liability for statements made during litigation, even when those statements are defamatory or otherwise damaging.1
Unfortunately, some tossing and turning, and perhaps even an occasional nightmare, remains over what “during litigation” means; specifically, caselaw is not entirely settled about how the privilege applies to presuit notices, letters, and even public records, like claims of lien. For the litigator threatened with suit or actually sued over one of these ubiquitous documents, the answers to such questions could mean the difference between immunity and liability or, at the very least, a lawsuit’s early dismissal versus protracted litigation.

Policy Considerations Behind the Litigation Privilege
As the Restatement (Second) of Torts explains, “absolute privileges are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests.”The nature of the modern practice of law necessitates that attorneys be among those “certain persons” protected by an absolute, or at least, qualified privilege:

“The basis for such…privileges for lawyers is to permit a free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice. In fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice.”3

Stated differently, in weighing “competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory [or otherwise wrongful] attacks versus the right of the public interest to a free and full disclosure of facts,”the latter outweighs the former.5

Origin and Application of the Litigation Privilege in Florida
With the exception of the quasi-judicial unemployment claim process, the litigation privilege is not statutory.Instead, Florida’s litigation privilege is based on precedent, with roots in the Florida Supreme Court as early as 1907.In the colorful case of Myers v. Hodges, 44 So. 357 (1907), Hodges filed suit against a corporation and made various allegations in his complaint about the corporation’s president, Myers, including that Myers “was and is held as a tricky, dishonorable, unscrupulous and conscienceless man…doing everything in his power to beat [Mr. Hodges] out of the money owing to him, short of swearing to a lie.”As one might imagine, Myers took issue with that description of himself and sued Hodges for libel.Myers’ claims did not persuade the trial court, and it entered judgment for Hodges.10 Myers appealed, and the Florida Supreme Court, after a detailed survey of caselaw from England and the United States, affirmed the trial court’s holding that a litigation privilege, such as existed in other jurisdictions, should operate in Florida:

[A]ccording to the overwhelming weight of authority, in order that defamatory words, published by parties, counsel, or witnesses in the due course of a judicial procedure, may be absolutely privileged, they must be connected with, or relevant or material to, the cause in hand or subject of inquiry. If they be so published and are so relevant or pertinent to the subject of inquiry, no action will lie therefor, however false or malicious they may in fact be.11

The Myers court further held that even if statements were not “relevant or pertinent to the subject of inquiry,” they would still be afforded a qualified privilege (rather than an absolute privilege), and would only be actionable if they were malicious, as well as irrelevant.12 While a qualified privilege defense often allows the speaker or publisher of a defamatory statement to ultimately avoid a plaintiff’s claims, it normally creates a mixed question of law and fact that must be resolved by the fact finder.13 In other words, protracted litigation often results despite a defense of qualified privilege.14 Furthermore, to be protected, a qualifiedly privileged statement must not be made “to too wide an audience.”15

Conversely, absolutely privileged communications remain immune from legal action despite the scope of their publication.16 Moreover, absolute immunity — especially when asserted against a claim that a written communication was wrongful17 — can be successfully presented in a motion to dismiss.18

Development of the Litigation Privilege
The “broad principles of law from Myers outlining the contours of Florida’s absolute privilege have…been reaffirmed by [Florida Supreme Court] on a number of occasions,”19 but Ange v. State, 123 So. 916 (Fla. 1929), stands as the court’s next seminal case.

• Ange v. State — In Ange, the Florida Supreme Court considered statements a sheriff made while applying for a warrant before criminal proceedings were pending.20 The court found the statements absolutely privileged and, in doing so, expanded the definition of “in the course of a judicial procedure,” to include actions “necessarily preliminary thereto”:

The rule of privilege as applied to statements made in the course of judicial proceedings is not restricted to trials of actions, but includes proceedings before a competent court or magistrate in then due course of law or the administration of justice which is to result in any determination or action by such court or officer. This privilege… arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.21

The Ange holding is deceptively simple. In practice, even now, nearly 90 years later, courts still grapple with questions about what acts are “necessarily preliminary” to a judicial proceeding. One Florida court has called such acts “steps in the judicial process.”22

Pledger v. Burnup & Sims, Inc. — In 1983, the Fourth District Court of Appeal revisited Ange in Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983).23 Among other things, Pledger answered (and created) some of the questions raised in Ange about what “necessarily preliminary thereto” means.

In Pledger, a corporation’s former president, Thomas Pledger, sued the corporation and its current president because of statements made in draft complaints used during settlement negotiations in a case Pledger was involved in, but not a party to.24 The court noted there “are many examples of publications which are necessarily preliminary to a judicial proceeding” that should receive absolute immunity, including “actions brought under the Florida Tort Claims Act, landlord-tenant actions, certain agricultural claims, various actions brought under the Uniform Commercial Code, insurance claims and other contract actions where the parties have agreed to a notice requirement as a condition precedent to suit.”25 However, the court found that the statements in question were not “necessarily preliminary acts as contemplated by the court in Ange,”26 and that “pre-litigation settlement efforts cannot be considered necessarily preliminary to the institution of judicial proceedings unless required by statute, administrative regulation, or contract.”27 Nonetheless, the Pledger court afforded qualified immunity to the statements in question, stating:

[T]he courts of Florida encourage pre-litigation settlement negotiations. It is in the interest of society to reach equitable and mutually satisfactory resolution of disputes without the necessity of suit….We hold that this policy reason is sufficiently enhanced, and the parties sufficiently protected, by the qualified privilege.28

• Fridovich v. Fridovich — Years later, the Florida Supreme Court again examined Ange in Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992), and again afforded qualified privilege rather than absolute privilege to the statements in question.29 Fridovich receded from Ange somewhat in holding “that defamatory statements voluntarily made by private individuals to the police or the state’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged,” rather than absolutely privileged.30 The court narrowly applied its holding to the specific “egregious facts” presented.31 Subsequent decisions by other courts also recognize the narrow application of the Fridovich “qualified privilege.”32 Moreover, the Fridovich court suggested and other courts have interpreted Fridovich to mean that although qualified privilege applies when statements are given voluntarily, the publisher would enjoy absolute immunity for statements required by law.33

• Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co. — The Florida Supreme Court’s development of the litigation privilege continued with Levin in 1994.34 Although, Florida’s district courts of appeal had previously extended absolute immunity beyond defamatory actions to other causes of action,35 Levin extended it to “any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior…,36 so long as the act has some relation to the proceeding.”37 Levin also provided the following useful rationale for the expansion: “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.”38

Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole — In 2002, the Third District Court of Appeal decided in Boca Investors Group, Inc. v. Potash, 835 So. 2d 273 (Fla. 3d DCA 2002) — as Ange did before — that “‘the privilege arises upon the doing of any act necessarily preliminary to judicial proceedings’[and that a]ccordingly, those acts must be afforded absolute immunity.”39 A few years later, the Florida Supreme Court reviewed the First District Court of Appeal decision of Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole , 950 So. 2d 380 (Fla. 2007), on the basis that it conflicted with Boca.

Echevarria involved plaintiff mortgagors who sued the mortgagee’s law firm for statements the firm made in pre-foreclosure reinstatement letters.40 On appeal, the Florida Supreme Court upheld the law firm’s absolute immunity for the presuit letters, and continued its expansion of the litigation privilege, stating that absolute immunity should exist not just against libel, defamation, and fraud claims, but “across the board…to common-law causes of action, those initiated pursuant to a statute, or of some other origin…so long as the act has some relation to the proceeding.”41

As Justice Pariente recognized in her concurring opinion, though, the majority opinion did not expressly address “whether the letters were, in fact, sent ‘in the due course of’ or as ‘necessarily preliminary’ to the foreclosure action.”42 However, Justice Wells, who concurred in part and dissented in part, did consider that all-important question and explored the meaning of the “necessarily preliminary” requirement when applied to presuit letters:

Florida courts have previously addressed what statements are ‘necessarily preliminary’ to judicial proceedings . The Fourth District Court of Appeal helpfully explained that publications necessarily preliminary to judicial proceedings include pre-suit communications that are required by statute or by contract as a condition precedent to suit. Pledger v. Burnup & Sims, Inc. , 432 So. 2d 1323, 1326 (Fla. 4th DCA 1983).

* * *

The reinstatement letters at issue were not a statutory or contractual prerequisite to foreclosure. As noted in Pledger , Florida law requires a plaintiff to send notice before filing a complaint in certain types of actions. For example, []766.106, Florida Statutes (2006), requires a medical malpractice claimant to notify each prospective defendant by mail prior to filing a complaint. Medical malpractice litigation arguably ‘begins’ when this notification is sent.

Here, no statute or contract provision required Echevarria to send borrowers reinstatement information in order to proceed with foreclosure.

* * *

In terms we used in Ange , the reinstatement letters were not statements ‘required or permitted by law in the due course of the judicial proceedings,’ nor were the letters sent because they were legally necessary in order to prosecute foreclosures.43

Thus, in Justice Wells’ view, since the reinstatement letters were not required or ‘necessarily preliminary’ to the judicial proceeding, absolute immunity should not have been available to the law firm.44

Recent Developments in this Evolving Area of Florida Law45
Several years after Echevarria , the U.S. Southern District of Florida also addressed presuit letters in a foreclosure action; that court seemed to disagree with Justice Wells regarding the appropriate privilege to apply to presuit letters. The court in Robb v. Rahi Real Estate Holdings LLC, et al. , No. 10-CV-81474, 2011 WL 2149941 (S.D. Fla. May 23, 2011), held that presuit collection letters did occur during the course of a judicial proceeding and were absolutely privileged:

To this extent, the remaining claims must be dismissed with prejudice because of Florida’s litigation privilege, Florida recognizes an absolute litigation privilege that “must be afforded to any act occurring during the course of a judicial proceeding . . . so long as the act has some relation to the proceeding.” Levin, [639 So. 2d at 608]. According to the Florida Supreme Court, this “privilege applies across the board to actions in Florida, both to common law causes of action, those initiated pursuant to statute, or of some other origin.” Echevarria , [950 So. 2d at 384]. Plaintiffs’ complaint is based on defendants’ pre-suit letters and subsequently filed foreclosure action. As such, this conduct occurred during the course of a judicial proceeding. Therefore, the remaining state law claims…are barred by Florida’s absolute litigation privilege insofar as they are based on the presuit letters and the foreclosure action.46

There is little with which to reconcile Robb and Justice Wells’ concurrence in Echevarria. Tellingly, though, the Robb court stated that it “read[] the complaint as an attempt to assert claims based on defendants suing plaintiffs in the foreclosure action,”47 whereas Justice Wells clearly saw the presuit reinstatement letters and the lawsuit itself as distinct from one another. It is possible that the Robb court was simply unpersuaded by Justice Wells’ concurring opinion; but it is also possible that the Robb decision signals a potential expansion of the litigation privilege to an even broader field of presuit communications.

Several recent trial court decisions have also held certain presuit communications were required by the relevant judicial proceeding and, thus, entitled to absolute privilege. For instance, in SP Healthcare Holdings, LLC v. Surgery Center Holdings, LLC , 11005595, 2013 WL 9947967 (Fla. 13th Cir. Ct. 2013), Judge Paul Huey, presiding over the 13th Circuit’s Complex Business Division, ruled that the “pre-suit indemnification notices [in that case]…were acts necessarily preliminary to judicial proceedings — and thus subject to an absolute litigation privilege, i.e., not actionable.”48

Likewise, in Mark C. Capwell, P.A. and Kyung Ryu v. Progressive American Insurance Company , No. 08-5782-COCE-53, 16 Fla. L. Weekly Supp. 264b (Fla. Broward Cnty. Ct. 2009), the Broward County Court dismissed two counts in a counterclaim that were “based on written statements the plaintiff, as a lawyer, was alleged to have made in [a] statutory pre-suit demand,” that “served as a condition precedent to [a] PIP lawsuit.” The court held:

[T]he [litigation privilege] doctrine encompasses “any act necessarily preliminary to judicial proceedings.” Burton []. Therefore, the [c]ourt concludes that an attorney is shielded from civil liability for false statements made in a PIP pre-suit demand letter, even if knowingly false ….Defendant cannot maintain an action for false statements made by an attorney in a pre-suit demand letter.49

In 2014, the Pasco County Circuit Court, “determined that the filing of [multiple] claim[s] of lien was subject to the absolute privilege.”50 More specifically, in AGM Inv’rs, LLC v. Bus. Law Group, P.A. , 219 So. 3d 920 (Fla. 2d DCA 2017), reh’g denied (May 19, 2017), the trial court applied absolute immunity and granted final summary judgment in favor of a defendant law firm on the issue of whether five claims of lien recorded on behalf of its community association client constituted abuse of process, malicious prosecution, slander of title, or injurious falsehood.51 The plaintiff appealed, and the Second District Court of Appeal found that three liens filed before the lawsuit was filed were “quite plainly necessarily preliminary”:52

The first three claims of lien were filed during the course of the [law firm’s] representation of the association in its anticipated lien collection efforts in examples of what we suspect is the more typical circumstance in which a claim of lien is filed and the lien is then litigated. The association’s recording of a claim of lien is legally necessary to its institution of judicial foreclosure proceedings to enforce that lien. See 718.116(5)(b), (5)(c), (6)(b), Fla. Stat. (2010). It is, in essence, the first step in invoking the judicial machinery of a lien foreclosure action. Conduct of this type is quite plainly necessarily preliminary to the commencement of a judicial proceeding.53

Despite its conclusion that the three liens filed before the lawsuit were necessarily preliminary (and entitled to absolute immunity), the court ultimately found that summary judgment was improper as to the two claims of lien filed after lien foreclosure proceedings were initiated because “factual disputes prevented [the trial court] from determining…that [the firm’s] conduct was necessarily preliminary” to suit:54

The legal question about the applicability of the privilege…however, depends upon the answers to predicate factual questions concerning what further lien enforcement proceedings were contemplated….[The law firm] failed to demonstrate why, as a matter of law, those lien filings were necessarily preliminary to any subsequent judicial proceedings to the exclusion of the related factual questions that remain unresolved. The record as it stands presents genuine, material factual disputes relevant on that issue, and the trial court erred in entering summary judgment.55

One of those factual disputes involved an unsettling issue of first impression — whether the law firm actually intended to file suit when it drafted the subject notices: “[A]lthough no Florida court has addressed the question, it is well-accepted elsewhere that tortious conduct will not be protected…as being preliminary to future litigation unless that future litigation was actually contemplated in good faith and under serious consideration .”56 Another factual dispute, and one that may explain the court’s decision, was whether the law firm had completely withdrawn from representing the association at the time it recorded the fourth and fifth liens.57

A similar decision from Florida’s Southern District also raised attorney intent in order to determine if a presuit communication should be given absolute immunity. In Kelly v. Palmer, Reifler, & Associates, P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2010), the court analyzed the litigation privilege as it related to demand letters a law firm sent pursuant to various states’ civil theft recovery statutes.58 In weighing whether the law firm was entitled to summary judgment on its absolute privilege defense, the Southern District determined that a jury needed to find that when it sent the letters, the law firm truly intended to eventually file suit.59 However, it is of paramount importance that the court was faced with (and acknowledged) exceptionally unusual circumstances that contributed to its holding:

It is true that 772.11(1) requires written notice prior to initiating a civil theft recovery action, which at first blush suggests absolute immunity because the letters were sent as required by statute. Yet upon further examination, given the number of letters sent over a multi-year period (literally millions) and the number of lawsuits actually initiated over that same time period (no more than 15 prior to this lawsuit being filed), and given the firm’s retainer agreement that provides (in many instances) for the possibility of litigation services but only pursuant to a separate agreement, we conclude that plaintiffs have sufficiently raised a question of fact as to whether the demand letters were truly intended as a condition precedent to filing suit as required by 772.11(1), i.e ., whether they were necessarily preliminary to judicial proceedings, or, as plaintiffs argue, whether they were sent merely as a ‘scare tactic.’60

The Potential Chilling Effect of Kelly and AGM Investors
The reasoning in Kelly and AGM Investors is understandable in light of their factual underpinnings. However, if these cases come to represent more than a simple coincidence born out of unusual facts, then they could threaten the very concept of “ absolute” immunity for attorneys hauled into court over a document required by law — the immunity would actually be qualified, since its applicability would be subject to a threshold determination on intent. Therefore, rather than getting out of such a lawsuit during early motion practice, well-meaning counsel (and their clients) could find themselves embroiled in full-borne litigation merely because a party pled that the subject document was drafted or recorded before litigation was “actually contemplated” or “under serious consideration.”61

Worse, since requisite presuit communications are ubiquitous, elevating the issue of intent to a “predicate factual question”62 in this manner could effectively repudiate the prudent public policy aims behind Florida’s litigation privilege. Those “weighty reasons”63 include that “judicial proceedings . . . be free from the fear of later civil liability64 as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.”65 As the Florida Supreme Court has acknowledged, such a “chilling effect… would seriously hamper the adversary system if absolute immunity were not provided.”66 These concerns would be particularly salient if Kelly and AGM Investors begin a trend, since seeking an answer to the newly promulgated predicate question requires delving into what will generally be privileged information.

Until jurisprudence on this issue is further developed, whenever possible,67 presuit communications required by law should plainly state on their face that they were sent pursuant to statute, regulation, or contract, and contain a clear warning that litigation is imminent.68

In Florida, “[t]he law has long looked with disfavor on…slander actions against lawyers uttered in the due course of judicial procedure except in the most extreme cases.”69 Because of that disfavor and the sound public policy behind it, Florida courts have extended absolute immunity beyond defamation claims to almost all causes of action for communications related to judicial proceedings.70 For the litigation privilege to endure and remain “extraordinarily broad,”71 these public policy objectives must be fostered. Therefore, absolute immunity should be made readily available for all but the most “egregious”72 presuit communications.73

1 Jackson v. BellSouth Telecomms ., 372 F.3d 1250, 1274 (11th Cir. 2004); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co. , 639 So. 2d 606, 608 (Fla. 1994) (the privilege also protects witnesses and judges).

2 Restatement (Second) of Torts 584 at 243 (Introductory Note: “Absolute Privilege Irrespective of Consent”) (internal quotations omitted).

3 Sussman v. Damian , 355 So. 2d 809, 811 (Fla. 3d DCA 1977).

4 Levin , 639 So. 2d at 608.

5 See id.

6 See Fla. Stat.
443.041(3), which expressly proscribes defamation actions. (“All letters, reports, communications, or any other matters…are privileged and may not be the subject matter or basis for any suit for slander or libel in any court of the state.”).

7 Myers, 44 So. 357 at 358.

8 Id.

9 Id.

10 Id. at 357.

11 Id . at 361 (emphasis added).

12 Id. at 365.

13 See, e.g., id .

14 Fariello v. Gavin , 873 So. 2d 1243, 1245 (Fla. 5th DCA 2004) (“[T]he affirmative defense of qualified immunity presents a fact intensive issue that should ordinarily not be resolved by a motion to dismiss.”) (internal citations omitted).

15 Healy v. Suntrust Serv. Corp. , 569 So. 2d 458, 460 (Fla. 5th DCA 1990). In addition, “the party making the [qualifiedly privileged] statement [must have] had a duty or a right, in the interests of society, to make the statement.” Litman v. Mass. Mut. Life Ins. Co. , 739 F.2d 1549, 1561 (11th Cir. 1984).

16 See Stewart v. Sun Sentinel Co ., 695 So. 2d 360, 362-63 (Fla. 4th DCA 1997)) (“[Appellee] was required by []768.29, Florida Statutes, to send a notice of claim to the state agencies involved, before he could file suit to recover for his client’s injuries. He gave a copy of the notice of claim to a reporter who published portions of it in a newspaper. [. . . A]s the trial court correctly found, [appellee] was entitled to the absolute immunity afforded statements made in the course of judicial proceedings, even though the lawsuit had not yet been filed. Ange v. State , 98 Fla. 538, 123 So. 916, 917 (Fla. 1929) (the privilege extends to statements made in judicial proceedings as well as those ‘necessarily preliminary thereto’).”).

17 Fla. R. Civ. P. 1.130(a) states in part: “All documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” Therefore, any complaint based on a writing should have the subject statement attached.

18 See LatAm Investments, LLC v. Holland & Knight, LLP , 88 So. 3d 240, 245 (Fla. 3d DCA 2011) (“[T]he litigation privilege…can be adjudicated on a motion to dismiss if the applicability of the privilege can be clearly discerned from the face of the complaint.”); see also Kidwell v. Gen. Motors Corp. , 975 So. 2d 503, 505 n.2 (Fla. 2d DCA 2007).

19 DelMonico v. Traynor , 116 So. 3d 1205, 1218 (Fla. 2013). Myriad cases applied the rule of Myers after that case was decided: See , e.g. , Fisher v. Payne, 113 So. 378, 380 (Fla. 1927) (noting that absolute privilege as defined in Myers applied in case where alleged defamatory statements were published in pleadings); Stewart v. Codrington, 45 So. 809 (1908) (recognizing that the question of whether defamatory words published in the due course of a legal procedure were libelous was considered by this court in Myers ).

20 Ange, 123 So. at 916 .

21 Id. at 917 (emphasis added). An almost identical rule was later included in the Restatement (Second) of Torts 587 (1977): “A party…is absolutely privileged to publish defamatory matters concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.” Restatement (Second) of Torts 587 (emphasis added). See also Fridovich v. Fridovich , 598 So. 2d 65, 66-67 (Fla. 1992).

22 Ball v. D’Lites Enterprises, Inc. , 65 So. 3d 637, 638 (Fla. 4th DCA 2011).

23 Pledger , 432 So. 2d at 1325.

24 Id.

25 Id. at 1326 (emphasis added).

26 Id. at 1326-27.

27 Id. at 1327 (emphasis added).

28 Id. (emphasis added) .

29 Fridovich , 598 So. 2d at 65. As might be assumed, the Florida Supreme Court continued to implement and discuss the litigation privilege during the 63 years between Ange and Fridovich . See, e.g. , Sussman , 355 So. 2d at 810 (holding that an attorney had an absolute privilege “to utter defamatory statements during the taking of a deposition or during a conversation with opposing counsel…so long as the statements uttered are relevant to the subject of the lawsuit.”); State ex rel. Giblin v. Sullivan, 26 So. 2d 509, 515 (1946) (setting forth the rule announced in Myers when discussing the contents of a party’s affidavit appended to a motion to dismiss); Budd v. J.Y. Gooch Co., 27 So. 2d 72, 75 (1946) (noting that “[t]he rule adopted by this court in determining whether or not words employed by a pleader in a judicial proceeding are privileged and not actionable is set forth in the case of Myers ”); Taylor v. Alropa Corp. , 189 So. 230, 231 (1939) (applying absolute privilege on the basis of Myers because “the words appearing in the pleading…were relevant and were properly used in connection with the foreclosure proceeding”).

30 Fridovich, 598 So. 2d at 69 (emphasis added).

31 Id. at 68-69.

32 See , e.g. , Olson v. Johnson , 961 So. 2d 356, 360 (Fla. 2d DCA 2007) (discussing Fridovich , “in which the Florida Supreme Court was presented with the certified question of whether a person who makes statements to law enforcement about another individual prior to the instigation of judicial proceedings is protected by an absolute privilege….”) (internal citations omitted) (emphasis added); Green Leaf Nursery v. E.I. DuPont De Nemours & Co. , 341 F.3d 1292, 1303 (11th Cir. 2003) (“Plaintiffs also argue that because of the egregious nature of [the defendant’s] misconduct, any litigation privilege should be qualified….In Fridovich, the Supreme Court of Florida held that… defamatory statements made to the authorities prior to the institution of criminal charges were only entitled to a qualified immunity, which was sufficiently overcome by the egregious facts of the case.”) (emphasis added); Webb v. Bush , No. 2006-CA-001567, 2010 WL 5071536, at *1 (“Because Mr. Webb did not initiate the complaint by contacting law enforcement, but was, instead, contacted by a law enforcement officer because of the complaint filed by Mrs. Bush, the issue in this case does not involve an issue of qualified immunity. Fridovich v. Fridovich , 598 So. 2d 65 (Fla. 1992).”).

33 See Fridovich , 598 So. 2d at 69, n.7 (“Our ruling does not apply to statements made under a state attorney’s investigatory subpoena. Such statements would be encompassed within a judicial proceeding and thus would be absolutely privileged.”); Olson, 961 So. 2d at 360 (“The court held that ‘defamatory statements voluntarily made by private individuals to the police or the state’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged….[V]oluntary statements are treated differently than statements made under a state attorney’s investigatory subpoena .”) (emphasis added); Sun Sentinel Co. , 695 So. 2d at 363, n.1 ( Ange was receded from, to some extent, in Fridovich… in which it was held that there is only a qualified privilege attaching to voluntary defamatory statements made by private individuals to the police or prosecuting attorney prior to the institution of criminal charges. Thus, intentionally false and malicious defamatory statements under those circumstances are not privileged. The notice of claim filed by Hurtado in this case was not voluntary, but rather a necessary step in order to file his client’s lawsuit, and has the same absolute privilege as the complaint would have.”).

The Florida Supreme Court continued its practice of narrowly applying holdings that could otherwise limit the application of the litigation privilege in DelMonico v. Traynor , 116 So. 3d 1205 (Fla. 2013). The DelMonico court declined to extend absolute privilege to allegedly defamatory and purportedly egregious “statements made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit.” Id. at 1208. Instead, the DelMonico court “conclude[d] that a qualified privilege instead should apply ….Id. The DelMonico holding, like the holding in Fridovich , applied only to the “narrow scenario” encountered by the DelMonico court. Id. See also McCullough v. Kubiak , 158 So. 3d 739, 741 (Fla. 4th DCA 2015) (“We distinguish this case from DelMonico… in which our supreme court held that the absolute privilege for alleged defamatory statements made in the course of a judicial proceeding does not extend to the ‘narrow scenario’ where statements are made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit.”).

34 Levin, 639 So. 2d 606 (Fla. 1994).

35 See Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989) (finding that the tortious claim of extortion, which was based on the alleged fraud and delaying tactics of counsel in the course of litigation, was improper because the conduct at issue was committed during the course of a judicial proceeding and was immune from civil liability in any subsequent proceeding), review denied, 554 So. 2d 1170 (Fla. 1989); Sailboat Key, Inc. v. Gardner, 378 So. 2d 47, 49 (Fla. 3d DCA 1979) (“[I]t may be said that injurious falsehood, which is a tort that never has been greatly favored by the law, is subject to all the privileges recognized both in cases of personal defamation and in those of other types of interference with economic advantage. ”) (internal quotations omitted).

36 The “alleged misconduct at issue” in Levin was an attorney’s certification to a trial court of his intent to call opposing counsel as a witness at trial in order to obtain counsel’s disqualification, and later failing to subpoena and call that person as a witness.

37 Levin , 639 So. 2d at 608 (emphasis added); see also Jackson , 372 F.3d at 1274. The view that there is absolute immunity for any act occurring during or necessarily preliminary to a judicial proceeding was receded from somewhat in DelMonico , as discussed above.

38 Levin , 639 So. 2d at 608. This rationale echoed Sussman , 355 So. 2d at 811.

39 Boca Inv’rs Group, 835 So. 2d at 275 (quoting Burton v. Salzberg , 725 So. 2d 450, 451 (Fla. 3d DCA 1999)) (emphasis added).

40 Echevarria, 950 So. 2d at 381.

41 Id. at 384 (internal citations and quotations omitted).

42 Id. at 385 (Pariente, J., concurring).

43 Id. at 386-87 (Wells, J., concurring) (emphasis added); see also Trent v. Mortg. Elec. Registration Sys., Inc. , 618 F. Supp. 2d 1356, 1360 (M.D. Fla. 2007), aff’d , 288 F. App’x 571 (11th Cir. 2008).

44 Justice Wells did not discuss the application of qualified immunity to the reinstatement letters. See id.

45 See N. Star Capital Acquisitions, LLC v. Krig , 611 F. Supp. 2d 1324, 1332, n.7 (M.D. Fla. 2009) (which also referred to “this still developing area of law”).

46 Robb , 2011 WL 2149941 at *8.

47 Id.

48 SP Healthcare Holdings, 2013 WL 9947967, at *2 (citing Echevarria , 950 So. 2d at 380; Pledger , 432 So. 2d at 1323).

49 Mark C. Capwell, 16 Fla. L. Weekly Supp. 264b (2009)
(emphasis added).

50 AGM Inv’rs, LLC v. Bus. Law Group, P.A. , 219 So. 3d 920, 921 (Fla. 2d DCA 2017), reh’g denied (May 19, 2017).

51 Id.

52 Id. at 925.

53 Id. (internal citations omitted).

54 Id. at 927.

55 Id. (emphasis added).

56 Id. at 926 (emphasis added) (internal citations omitted).

57 Id.

58 Kelly, 681 F. Supp. 2d at 1369.

59 See id. at 1369.

60 Id. (emphasis added) .

61 AGM Inv’rs, 219 So. 3d at 926.

62 Id. at 927.

63 Myers, 44 So. at 361.

With today’s attorneys’ fees and defense costs, protracted litigation may be as feared as any eventual adverse judgment.

65 Levin, 639 So. 2d at 608 (emphasis added).

66 Id. (emphasis added).

67 Attorneys retained merely to draft a requisite presuit notice or lien, and not necessarily file suit, should be otherwise circumspect.

68 See Rolle v. Cold Stone Creamery, Inc., 212 So. 3d 1073, 1078 (Fla. 3d DCA 2017 ) ( [W]ithout additional factual information it is difficult to characterize the letter as a pre-suit notice as required by section 770.01. The letter did not warn CNBC that a lawsuit was imminent, and thus, on its face, the letter cannot be said to provide notice of an impending lawsuit.”); see also Fariello, 873 So. 2d at 1245 (“The difficulty is, however, that we cannot tell based only on the complaint [(and thus the allegedly actionable letters that should have been attached thereto under Florida Rule of Civil Procedure 1.130(a))] whether [the absolute immunity defense] will have any viability.”).

69 Sussman, 355 So. 2d at 811 (emphasis added).

70 See, e.g., Echevarria, 950 So. 2d 380; Levin, 639 So. 2d at 608. The sole exception to the privilege’s extension to other causes of action is a logical one — a claim of malicious prosecution; such an extension could arguably “abolish” or “eviscerate” that cause of action. See Debrincat v. Fischer, 217 So. 3d 68, 69-70 (Fla. 2017).

71 Fischer v. Debrincat, 169 So. 3d 1204, 1209 (Fla. 3d DCA 2015), approved, 217 So. 3d 68 (Fla. 2017).

72 Fridovich, 598 So. 2d at 68.

73 See generally, Levin, 639 So. 2d at 608; see also AGM Inv’rs, LLC, 219 So. 3d at 921 (“[R]esolution of questions of litigation privilege at an early stage of the litigation furthers the policies underlying the privilege”). This would “not mean . . . that a remedy for a participant’s misconduct is unavailable in Florida,” Levin, 639 So. 2d at 608, as “adequate remedies still exist for misconduct in a judicial proceeding, most notably the trial court’s contempt power, as well as the disciplinary measures of the state court system and bar association.” Echeverria, 950 So. 2d at 384.

Photo of Jeffrey P. Lieser JEFFREY P. LIESER is the managing partner of Lieser Skaff Alexander (LSA) in Tampa. LSA is a seven-attorney law firm that concentrates on business and real estate litigation. In addition to his work as a litigator, he serves as a circuit civil mediator and an Army Reserve judge advocate.


Photo of Laura R. Mauldin LAURA R. MAULDIN is an associate at LSA. Her practice includes employment law and complex commercial litigation. After receiving her law degree from the University of Virginia, Mauldin clerked for Judge Virginia M. Hernandez Covington of the U.S. District Court, Middle District of Florida.