Attorney’s Alleged Slurs in Ex Parte Contacts Get Only Qualified, Not Absolute, Privilege

By Joan C. Rogers  


A lawyer's allegedly defamatory statements during informal, out-of-court contacts with potential witnesses are not protected by the absolute privilege that generally applies to statements made in the course of a judicial proceeding, a narrowly divided Florida Supreme Court held Feb. 14 (DelMonico v. Traynor, Fla., No. SC10-1397, 2/14/13).

After balancing policy considerations, the four-justice majority concluded that the lawyer may instead claim a qualified privilege, which can be defeated by a showing of express malice. There is no privilege at all if the lawyer's disputed statements are unconnected to the underlying case, Justice Barbara J. Pariente made clear in the majority opinion.

In dissent, one justice asserted that the absolute privilege applies to this type of informal discovery if the lawyer's statements are relevant to the underlying litigation.

Two other dissenters argued that the court did not have jurisdiction to hear the appeal and that the issue of qualified privilege was not preserved for review.

Lawyer Sued for Defamation

The case centered on statements allegedly made by A. Rodgers Traynor Jr. in the course of investigating an underlying defamation action he was hired to defend.

In the underlying action, Daniel DelMonico, the president of MYD Marine Distributor Inc., sued two business competitors, Donovan Marine Inc. and one of Donovan's sales representatives, Tony Crespo.

That lawsuit asserted that Crespo defamed DelMonico by telling some of DelMonico's customers that he had lured customers away from Donovan by supplying prostitutes to the owner of a company that was doing business with Donovan.

“[W]here an attorney steps outside of both the courtroom and the formal discovery process to investigate a claim, this Court's precedent does not support an extension of the absolute privilege.”
Justice Barbara J. Pariente

While that defamation action was pending, DelMonico and MYD lodged this defamation suit against Traynor and his firm, Akerman Senterfitt. The plaintiffs alleged that Traynor had falsely stated during out-of-court interviews with several potential witnesses that DelMonico was being prosecuted for using prostitution to get business. MYD lost an exclusive distributorship as a result, they asserted.

Traynor acknowledged that he had interviewed prospective witnesses in connection with the underlying defamation action, but he denied telling anyone that DelMonico was being prosecuted for prostitution.

The trial and appellate courts concluded that the plaintiffs' claims against Traynor and his firm were barred by Florida's absolute privilege for statements made in the course of a judicial proceeding.

The Florida Supreme Court reversed and remanded, holding that the defendants could assert a defense of qualified, but not absolute, privilege.

“[W]here an attorney steps outside of both the courtroom and the formal discovery process to investigate a claim, this Court's precedent does not support an extension of the absolute privilege,” Pariente wrote.

No Absolute Immunity

The court concluded that “Florida's absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit.”

Recognition of the absolute privilege, Pariente said, derives from balancing two competing interests: the public interest in allowing litigants and counsel to advocate freely and zealously for their causes in court versus individuals' rights to maintain their reputation and not be subjected to slander or malicious conduct.

On which side the scales tip depends on the availability of safeguards to curb and counteract defamatory statements, Pariente stated. In cases where the absolute privilege has been applied, she noted, the objectionable statements were made either in front of a judicial officer or in papers filed with the court or a quasi-judicial body.

In these settings, the court explained, the allegedly defamatory statements are memorialized, perjury can be prosecuted, and the trial court is able to take protective steps such as striking irrelevant or defamatory matter and punishing the guilty party for contempt of court. Such safeguards justify applying the absolute privilege to depositions, the court said.

These safeguards are either unavailable or far less effective where the allegedly defamatory statements are made by a lawyer to a nonparty witness during an out-of-court, informal investigation, Pariente continued. Absent these safeguards, she said, the value of the absolute privilege as a mechanism for discovering truth decreases while the potential for damage to a person's reputation increases.

Qualified Privilege

The court concluded that without the protections available in more formal settings, only a qualified privilege applies to statements attorneys make in their informal investigation during pending litigation when they engage in ex parte, out-of-court questioning of nonparty witnesses. This qualified privilege better serves the competing public policies at stake, it found.

The court made clear, however, that the qualified privilege does not immunize statements that are unconnected to the subject of inquiry in the underlying suit. The appropriate standard on this issue, it said, is whether the disputed statement or act has some relation to the proceeding.

The trial judge must make this threshold determination and allow latitude for a lawyer's judgment about what is pertinent, the court instructed. It said the lawyer is not entitled to any privilege at all if the trial judge finds the allegedly defamatory statements irrelevant.

If, however, the judge is satisfied as a matter of law that the alleged statements were connected or related to the subject of inquiry, the lawyer is entitled to assert a qualified privilege. In that situation, the court explained, the plaintiff has the burden of proving “express malice” to overcome the privilege.

Application of Principles

Applying these principles, the court found that Traynor could not claim the absolute privilege, but that his alleged statements were relevant to the subject of inquiry and therefore protected by a qualified privilege.

Traynor's discussion with prospective witnesses about DelMonico's alleged use of prostitution was related to the subject of inquiry, the court found, because he was gathering information about the veracity of the accusations against his client in the underlying lawsuit.

DelMonico and MYD may overcome the defendants' assertion of qualified privilege, Pariente said, by establishing express malice through a showing by a preponderance of the evidence that the statements were false and that Traynor's primary motive was to injure the plaintiffs' reputation.

Disagreement Within Court

Justice R. Fred Lewis dissented, arguing that the concepts of qualified privilege and express malice should not be engrafted into this area of law.

He asserted that the absolute litigation privilege could apply here once a jury resolves the dispute over what statements were actually made. Only then could it be determined whether the statements were related to or connected with the underlying litigation, Lewis said.

In a dissent joined by Chief Justice Ricky L. Polston, Justice Charles T. Canady said the majority decision “does double damage to the structure of the appellate process.”

The decision below did not actually conflict with an earlier supreme court case applying the absolute privilege, and therefore the supreme court lacked jurisdiction to review the decision, Canady contended. He also asserted that the issue of qualified privilege was not properly before the supreme court because the issue surfaced for the first time in a dissent to the appellate decision below.

Holiday Hunt Russell of Hollywood, Fla., and Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow PA, Fort Lauderdale, Fla., represented DelMonico and MYD.

Jane Kreusler-Walsh and Rebecca M. Vargas of Kreusler-Walsh, Compiani & Vargas, West Palm Beach, Fla., and William M. Martin of Peterson Bernard, Fort Lauderdale, represented Traynor and his firm.

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