While our judiciary is calling for increased civility in litigation, our clients expect us to zealously advocate their positions using no-holds-barred tactics. At the expense of professionalism, in the heat of battle, some attorneys will use intimidation or harassment to gain a perceived advantage in litigation or a favorable settlement position. In almost every jurisdiction, attorneys have what is deemed an "absolute privilege" with respect to statements made in connection with a judicial proceeding. Even if an attorney utters knowingly false statements with malicious intent, the attorney’s defamatory statements are not actionable. However, as this article highlights, attorneys should proceed with caution, as the absolute privilege may not apply in every situation. This article begins by discussing the public policy behind the defense, and goes on to discuss (1) the trend not to apply the privilege to communications made to third parties; (2) the requirement that the communications be related to judicial proceedings; and (3) the limitation of the defense to defamation actions alone.
I. PUBLIC POLICY CONSIDERATIONS FOR THE PRIVILEGE
As a matter of public policy, attorneys have been allowed the utmost freedom to express their positions to other attorneys, their clients, and the court even when some of the expression might otherwise be actionable as defamatory. The privilege is based upon the public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.1 The privilege is available only when the following conditions have been met: the publication was made in a judicial proceeding; had some connection or logical relation to the action; was made to achieve the objects of the litigation; and involved certain types of litigants or participants.2
The source of the absolute privilege for attorneys is the Restatement (Second) of Torts, which states:
An attorney at law is absolutely privileged to 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.3
An attorney is protected from defamation irrespective of (1) the purpose in publishing defamatory matter, (2) the belief in its truth, and (3) the knowledge of its falsity.
For years, Illinois courts have followed the attorney absolute privilege found in the Restatement. The courts have not limited its application to in-court statements. In Weiler v. Stein,4 one of the leading Illinois cases in this area, the court held that, in a libel action, an absolute privilege applied to a letter sent by an attorney to his own clients concerning the evaluation of two offers for the clients’ assets. The Weiler court held that the privilege applied to an attorney’s statement to his client even though it was an out-of-court communication because it found the statement pertinent to the pending litigation.5
The privilege has also been applied when the communication is from one attorney to another, even where the two are representing parties in separate litigation involving the same defendant. In Libco v. Adams,6 an allegedly defamatory statement was sent by an attorney to another attorney. At the time the letter was written, each attorney was involved in separate proceedings against Libco. In the letter, the attorney thanked the second attorney for forwarding information on Libco and proceeded to explain his strategy and theories on the merits of the pending action. The second attorney was also advised not to transfer the matter. Relying in part on the Restatement, The Libco court found that the two attorneys shared common opponents; that the action filed by the defendant attorney was of interest to the other attorney; and that the defendant attorney was acting in his professional capacity advising the second attorney not to transfer the action. Under the circumstances of that case, the court held that the public interest outweighs the possibility of harm to the plaintiff and that the communication should therefore be privileged.7
II. THE ABSOLUTE PRIVILEGE DOES NOT APPLY TO COMMUNICATIONS MADE TO THIRD PARTIES.
While Libco and Weiler allow an absolute privilege to attorneys who are communicating directly with their clients or with other attorneys involved in litigation against common opponents, Illinois courts have been unwilling to extend the privilege to communications made with third parties unrelated to the litigation.
The case law is developing as to who is a third party sufficiently related to the litigation for the privilege to apply. Communications regarding a witness in a judicial proceeding is sufficiently related to the litigation.8 In Golden v. Mullen,9 the First District held that defamatory statements made to the client regarding opposing counsel were protected by the absolute privilege, but the privilege did not extend to statements made to the client’s wife. In that case, the attorney sent an allegedly defamatory letter addressed to his client and his client’s wife concerning the opposing counsel in a recently concluded case. The court reasoned that since the privilege affords complete immunity, the definition of communications that are absolutely privileged must necessarily be narrow. The court declined to expand the privilege to cover communications made by attorneys to persons other than their clients.
There is some authority that the absolute privilege does not apply to statements made to the media in connection with judicial proceedings. In Lykowski v. Bergman,1 0 the plaintiff was a candidate for judge and the defendant was chairman of a political party committee.. The defendant sent an allegedly libelous letter to the Attorney Registration Disciplinary Commission (ARDC) alleging unethical acts and improper conduct on the part of the plaintiff. The letter then was leaked to both the media and the plaintiff’s employer.1 1 The appellate court held that the defendant was absolutely privileged to make defamatory statements to the ARDC as part of a judicial proceeding. However, the statements made to third parties such as to the media and to the employer were not held privileged.1 2
The same point is also illustrated in Thompson v. Frank13 which involved a bitter child custody dispute. The attorney sent a letter to the opposing party’s spouse. The letter claimed that the ex-wife had slept with the ex-husband; client and that she was devious and dishonest. The recipient was the ex-wife’s new husband. Reversing the trial court, the appellate court held that the absolute privilege did not apply. The court found no Illinois precedent allowing it to extend the privilege to cover out-of-court communications to third persons.
III. THE STATEMENTS IN THE DEFAMATORY LETTER MUST HAVE SOME RELATION TO A JUDICIAL PROCEEDING.
Section 586( c ) of the Restatement (Second) of Torts provides that "the privilege does not cover the attorney’s publication of defamatory matter that has no connection whatever with the litigation." The requirement that the matter be connected to litigation has been construed liberally.
No judicial proceeding need be pending for the privilege to apply. In Popp v. O’Neil,1 4 an attorney wrote to a potential client declining to represent him because a witness in the case had lied on the stand in another action and that the witness hated the firm because it had won a substantial judgment against the witness. The court held that the defendant attorney was absolutely privileged to make defamatory statements in communications preliminary to a proposed judicial proceeding or in the institution of or during the course of a judicial proceeding in which the attorney participated as counsel. The only requirement is that the particular communication pertain to proposed or pending litigation.1 5
While the courts have expanded the applicability of the privilege from pending litigation to include proposed litigation, The Golden case includes another category: recently concluded litigation. The court held that the absolute privilege attaches to defamatory statements made post-litigation to the client the attorney represented in such a proceeding.16 The court expanded the privilege by applying it even where there was no pending or proposed judicial proceeding, and where the attorney-client relationship had been terminated.
It would appear that anything remotely connected to litigation would satisfy the relevancy requirement. However, consider Kurczaba v. Pollock,1 7 where the defendant-attorney distributed copies of an amended complaint with a copy of the plaintiff-attorney’s announcement stapled to it. The announcement was in Polish and advertised plaintiff’s association with a new firm. The amended complaint alleged wrongdoings by plaintiff’s family members and entities with which he was closely associated. The recipients were members and institutions of Polish communities in Chicago. Because the defendant amended the complaint without first obtaining leave of court, it was held that the statements were not made in connection with a judicial proceeding and were not privileged.1 8
IV. THE ABSOLUTE PRIVILEGE DEFENSE MAY BE LIMITED TO DEFAMATION AND FALSE LIGHT ACTIONS.
Illinois courts have been unwilling to extend the absolute privilege defense to actions other than those involving claims of defamation and false light. In Zdeb v. Baxter International Healthcare,1 9 the court refused to extend the defense of absolute privilege to claims for intentional interference with prospective business economic advantage. The court reasoned that Section 586 of the Restatement (Second) of Torts applies only to defamation. Also, it relied upon comment (e) to Section 586, which expressly provides that the privilege "protects the attorney from liability in an action for defamation." The court also found that policy reasons supported its interpretation:
The impenetrable shield of absolute privilege should not be extended or available for the possible widespread abuse recognized by the trial court, i.e., a party simply could convey information through an attorney and escape any liability by crying privilege. The privilege’s alleged limitation to communications relating to seriously contemplated litigation is not a safeguard feature as advanced by Baxter but, rather, a vast, limitless loophole into which all attorney communication could escape.2 0
The absolute privilege has also been applied in false light claims.2 1 The Zdeb court distinguished false light claims from other tort actions.2 2 In Section 652A of the Restatement (Second) of Torts, false light is recognized as an invasion of privacy cause of action. Section 652F of the Restatement expressly provides that the rules on absolute privilege as stated in the defamation section apply to invasion of privacy suits.
Therefore, although the absolute privilege is an available defense to defamation, the courts may not apply the defense to other causes of action stemming from the same facts.
V. AN ATTORNEY MAY BE SUBJECT TO OTHER RECOURSE EVEN IF THE ABSOLUTE PRIVILEGE APPLIES.
It is important to note that while the Restatement protects an attorney’s reckless or even malicious conduct2 3 from liability under a defamation theory, it does not necessarily afford protection from scrutiny by the disciplinary commission for possible ethical violations.
Nor would the absolute privilege allow an attorney to avoid sanctions under Supreme Court Rule 237. In Malevitis v. Friedman,2 4 the attorney described opposing counsel as "perfidious" and "dishonest." The court found that the alleged statements were made while a breach of contract action was pending. The court found the statements sufficiently related to the proceedings to be covered by the absolute privilege. The court did note that while it did not condone the hostility displayed by these "intemperate" statements, the remedy for such conduct more appropriately would be in the form of sanctions.
The courts have not applied the absolute privilege in each and every case brought against attorneys for their conduct in judicial proceedings. The prudent attorney should think twice before defaming an adversary or should check first with their malpractice carrier to determine the availability of coverage.
1 Restatement (Second) of Torts §586 comment c at 248 (1977). But see Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St. L. J. 985 (Fall 1993), suggesting that the public policy would be better served by allowing a qualified privilege to attorneys rather than an absolute privilege. Attorneys would be protected if they acted without malice or after reasonable investigation.
2 53 C.J.S. Libel and Slander §72, at 132 (1987).
3 Restatement (Second) of Torts §586 comment a at 247 (1977).
4 67 Ill.App.3d 179, 384 N.E.2d 763 (1st Dist. 1978).
5 Id. at 183, 384 N.E.2d at 764.
6 100 Ill.App.3d 314, 426 N.E.2d 1130 (1st Dist. 1981).
7 Id. at 317, 426 N.E.2d at 1132.
8 Zanders v. Jones, 680 F.Supp.1236, 1238 (N.D.Ill. 1988).
9 295 Ill.App.3d 865, 693 N.E.2d 385 (1st Dist. 1998).
10 299 Ill.App.3d 157, 700 N.E.2d 1064 (1st Dist. 1998).
11 Id. at 160, 700 N.E.2d at 1067.
12 Id. at 166, 700 N.E.2d at 1071.
13 313 Ill.App.3d 661, 664, 730 N.E.2d 143, 145-46 (1st Dist. 2000).
14 313 Ill.App.3d 638, 730 N.E.2d 506 (2d Dist. 2001).
15 Id. at 643, 730 N.E.2d at 511.
16 295 Ill.App.3d at 871, 693 N.E.2d at 390.
17 318 Ill.App.3d 686, 706, 742 N.E.2d 425, 439 (1st Dist. 2000).
18 Id. at 706, 742 N.E.2d at 439.
19 297 Ill.App.3d 622, 629, 697 N.E.2d 425, 429 (1st Dist. 1998).
21 McGrew v. Heinhold Commodities, Inc., 147 Ill.App.3d 104, 115, 497 N.E.2d 424, 432 (1st Dist. 1986).
22 297 Ill.App.3d at 629, 697 N.E.2d at 430.
23 See Ringier America, Inc. v. Enviro-Technics, Ltd., 284 Ill.App.3d 1102, 1105, 673 N.E.2d 444, 446 (1st Dist. 1996),where it was alleged that an attorney maliciously filed a counterclaim and lis pendens notice for the sole purpose of clouding title, the court held that these actions were deemed privileged.
24 2001 Ill.App. Lexis 525, at*7 (1st Dist. June 29, 2001).
Laurie A.Silvestri is in solo practice concentrating in commercial litigation. She is also an adjunct instructor of legal drafting at Chicago-Kent College of Law. She graduated from the University of Chicago with a B.A. and from Chicago-Kent College of Law with a J.D. Formerly, she was a staff attorney for the Illinois Appellate Court for the Second District.