Anti-SLAPP Act, Litigation Privilege Don’t Bar Suit Against Lawyer for Alleged Slur to Media

By Joan C. Rogers  

The Illinois anti-SLAPP act doesn't protect a lawyer from suit for allegedly defaming a client's litigation opponent through comments made to a news reporter about pending litigation, the Illinois Appellate Court, Second Division, decided Sept. 6 (August v. Hanlon, Ill. App. Ct. 2d Dist., No. 2-11-1252, 9/6/12).

In an opinion by Justice Donald C. Hudson, the court also held that the litigation privilege and the fair reporting privilege did not shield the lawyer from the defamation suit.

Newspaper Article on Pending Suit.

The defendant in the defamation case is attorney Robert T. Hanlon, who practices law in Woodstock, Ill. The plaintiff, Charles August, is a business agent and organizer for a union.

The complaint alleges that Hanlon slandered August in talking with a newspaper reporter about a lawsuit that Hanlon was pursuing on behalf of a corporate client against August and others. In that action, Hanlon's client claimed that August and R.W. Smith Jr. solicited a charitable donation from it through Smith's business, “Jesse Oaks,” but kept the money instead of giving it to charity.

Hanlon allegedly had a telephone conversation with a newspaper reporter about the suit. The article the reporter wrote, “Businessman Alleges He Was Scammed Out of $10,000,” quoted Hanlon as stating that the client “opened up [its] checkbook and wrote a big check, only to find out that not only did none of the money go to a disabled kid, but that Jesse Oaks isn't a kid, it's a biker bar.” According to the article, Hanlon said that his requests for documentation proving the money went to charity had gone unanswered, and that the dispute was not a “mere misunderstanding.”

In his tort action against Hanlon, August asserted that Hanlon's comments to the reporter slandered him and invaded his right to privacy from publicity placing him in a false light.

The trial court threw out the lawsuit, concluding that it was barred by the Illinois Citizen Participation Act, 735 Ill. Comp. Stat. 110/1 et seq. Hanlon's act of seeking redress for his client in court and his comments to the reporter were protected activity under the act, the trial court ruled.

The appellate court reversed and revived the action, holding that it is not prohibited by the anti-SLAPP act and that Hanlon has no viable privilege claim to deflect it.

Not a SLAPP.

Reviewing the anti-SLAPP statute, the court explained that it aims to prevent “SLAPPS,” or Strategic Lawsuits Against Public Participation.

The act immunizes citizens from a civil action that is “based on, relates to, or is in response to” acts taken in furtherance of the constitutional rights to petition, speech, association, and participation in government. Also, it establishes an expedited legal process to escape from a SLAPP. According to the court, the Illinois act is written more broadly than the statutes in other states.

Reviewing the pleadings, affidavits, depositions, and admissions on file in this case, the court found that Hanlon did not carry his burden of proving, as required by Sandholm v. Kuecker, 962 N.E.2d 418 (Ill. 2012), that the suit against him was based solely on the rights of petition, speech, association, or participation in government.

The litigation privilege is inapplicable where “the allegedly defamatory statements were made … to a newspaper reporter who was not connected to the lawsuit.”
Justice Donald C. Hudson

Instead, the court found that August's objective in filing suit was not solely to burden Hanlon's right to petition the government, but to seek damages for the personal harm resulting from Hanlon's allegedly false and defamatory statements.

For example, the court explained, the complaint alleged that the comments Hanlon made to the reporter about August wrecked his reputation among colleagues and brought him into public disgrace. As a direct result, August allegedly was not selected to run as treasurer of the union, which would have provided him with $40,000 to $45,000 of extra income, and he allegedly was unable to act in his role as principal fundraiser for a local charity.

These concrete examples showed that the plaintiff filed suit, at least in part, to salvage his reputation and goodwill in the community, the court found. It also pointed out that the trial court apparently believed August had pleaded sufficient facts to go forward.

Since Hanlon failed to prove that the suit was solely based on his exercise of his constitutional rights of petition, speech, association, or participation in government, the burden never shifted to August to prove that Hanlon's acts were not immune from liability under the act, the court added.

No Privilege.

Hanlon did not fare any better with his attempt to deflect the defamation claim via the litigation privilege and the fair reporting privilege.

Although the court found he waived those arguments by not raising them in the trial court, it went ahead and explained why neither privilege applied here.

Regarding the litigation privilege, Illinois recognizes an absolute privilege, drawn from Section 586 of the Restatement (Second) of Torts (1977), when an attorney's statement (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law.

The privilege did not apply here, the court found, because “the allegedly defamatory statements were made outside of the judicial proceeding to a newspaper reporter who was not connected to the lawsuit.”

While Illinois courts have extended the attorney litigation privilege to some out-of-court statements, they have expressly declined to extend the privilege to communications with third parties not connected with the litigation, the court said.

As for the fair reporting privilege, the court found that it likewise has no application to this case. The privilege, based on Section 611 of the Restatement (Second) of Torts, applies to accurate reports of official proceedings and public meetings.

“While the fair-reporting privilege might arguably apply to the newspaper that published the article upon which plaintiff's complaint is based, defendant fails to explain how the fair-reporting privilege extends to him,” the court stated.

R. Mark Gummerson, Adrian M. Gosch, and Jamie R. Wombacher of Gummerson Rausch Wand Lee Wombacher in Woodstock, Ill., represented August.

Robert T. Hanlon of Robert T. Hanlon & Associates, Woodstock, represented himself, along with Gerald P. Baggott III, Woodstock.

Full text at

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2012, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.