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By Samson Habte
Dec. 24 --A lawyer who was contemplating a disciplinary complaint against an opposing counsel cannot be held liable for the “potentially defamatory statements” that he made in dozens of letters that sought feedback about his nemesis's allegedly unethical conduct, the Maryland Court of Special Appeals held Dec. 19 (Mixter v. Farmer, 2013 BL 352285, Md. Ct. Spec. App., No. 1804, 12/19/13).
The ruling affirmed the decision of a trial judge who held that the common law defense of absolute privilege insulates the dirt-seeking lawyer from defamation, emotional distress and tortious interference claims that his adversary filed in response to the letters.
The court rejected the plaintiff's argument that recognizing the privilege in cases such as this would allow lawyers to use the disciplinary process as an opportunity “to disparage [opponents] continuously and without recourse.”
“While we acknowledge that the [grievance] process potentially may allow defamation against a specific lawyer, this outcome is weighed against the greater need to protect the public from unethical lawyers,” Judge Albert J. Matricciani wrote.
The ruling extinguishes a lawsuit that attorney Mark T. Mixter filed against James Farmer, a fellow lawyer. “To characterize Farmer and Mixter's relationship as acrimonious might be the understatement of the year,” the court said.
The two attorneys represented clients on opposing sides of a 2009 lawsuit. That case “ultimately settled for a small amount of money,” the court noted, but “Farmer was so infuriated by Mixter's behavior that he sought sanctions against him.” A trial court granted the motion but was reversed on appeal.
Farmer then took matters into his own hands. He did so, the court explained, by sending “twenty letters to various Maryland attorneys discussing [Mixter's] 'unprofessional behavior' in [the] case, and seeking information about other lawyers' negative experiences with Mixter for a potential complaint with the Attorney Grievance Commission of Maryland (AGC).”
One year later, Mixter brought a defamation and intentional infliction of emotional distress lawsuit against Farmer, who had at that point not filed his grievance.
“Farmer then sent additional letters to other local attorneys and individuals, including to one of Mixter's clients, seeking more information for his complaint,” the court noted. That caused Mixter to amend his lawsuit to add counts for tortious interference with contract and tortious interference with prospective advantage.
The trial court dismissed the suit. Farmer's allegedly defamatory statements “had a specific and rational relationship to the anticipated proceedings before the AGC,” it said, and thus were absolutely privileged.
On appeal Mixter asserted that the privilege did not apply because Farmer's “real purpose” in sending the letters was not to gather evidence for a disciplinary complaint but to “disparage Mixter's reputation in the legal community,” the court noted.
“Mixter contends that the sixteen-month delay between Farmer's writing the letters and filing the grievance establishes that [Farmer] did not intend originally to file a grievance, but only used this later filing as an excuse, after [Mixter] sued him,” Matricciani stated.
The court disagreed. “Although the delay in filing a grievance was lengthy, we agree with the trial court that it was not long enough to sever the clearly stated connection to the AGC complaint,” it said. Moreover, disciplinary complainants must be “allowed time to gather evidence,” Matricciani said, and Farmer's “stated reason for the delay, that [the underlying case] was still active, strikes us as reasonable.”
Mixter also said the lack of particularity in Farmer's ethics complaint--which did not cite any specific professional rule violations--offered more evidence of his pretextual motive.
The court said that argument was “unpersuasive for two reasons: first, there is no requirement that an AGC complaint allege specific rule violations; and secondly, under Maryland law, even a meritless complaint is privileged and the complainant's motive is immaterial.”
Mixter's alternative argument was that the privilege extends only to defamation-related claims and thus did not require the dismissal of his emotional distress and tortious interference claims.
The court rejected that cramped reading. “While there is no Maryland law specifically applying absolute privilege to intentional infliction of emotional distress, tortious interference with existing contracts, or tortious interference with prospective advantage, there is precedent for applying absolute privilege to torts beyond defamation when those other torts arise from the same conduct as the defamation claim,” Matricciani said.
Moreover, Mixter's emotional distress and tortious interference claims could not survive even if his narrow reading of the privilege was correct, the court found. Mixter failed to establish essential elements of those torts, Matricciani explained, and those counts would thus be dismissed for failure to state a claim.
The court further held that “a broad reading of absolute privilege makes sense from a policy perspective.” Quoting another court, Matricciani said the policy concerns underlying the common law defense “would be severely undercut if the absolute privilege were to be regarded as less than a bar to all actions arising out of the 'conduct of parties and/or witnesses in connection with a judicial proceeding.'”
The court was not convinced by Mixter's countervailing argument that “the trial court's ruling harms the public policy underlying absolute judicial privilege because it allows Farmer to disparage him continuously and without recourse.”
“While we acknowledge that the AGC process potentially may allow defamation against a specific lawyer, this outcome is weighed against the greater need to protect the public from unethical lawyers,” the court said.
“Because AGC complaints are not published and lawyers' exposure is protected to a reasonable degree,” it added, “we are unwilling to overlook the absolute privilege accorded to the AGC process simply because appellant feels aggrieved in this situation.”
Vincent M. Guida of Bowie & Jensen LLC, Towson, Md., represented Mixter. Edward Hutchins Jr. of Eccleston & Wolf P.C., Hanover, Md., represented Farmer.
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