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LSA Writes Article for Florida Bar About Florida’s Litigation Privilege

By: Jeff Lieser Posted on: Wednesday, October 10th, 2018

Lieser Skaff Alexander attorneys wrote an article about Florida’s Litigation Privilege that was published by the Florida Bar Journal in the September/October 2018 issue (Volume 92, No.8).

The litigation privilege “initially developed to protect litigants and attorneys from liability for acts of defamation, but has since been extended to cover all acts related to and occurring within judicial proceedings.”[1] It is a doctrine deeply grounded in public policy considerations. 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.”[2]

With regard to attorneys, specifically, Florida courts have explained:

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. As such, the law has long looked with disfavor on such slander actions against lawyers uttered in the due course of judicial procedure except in the most extreme cases where the defamatory statement was totally irrelevant to the lawsuit and was uttered with deliberate and premeditated malice.[3]

The ligation privilege is the result of “balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts . . . .”[4]  Florida courts have “determin[ed] that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation,” and “have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id.

“The privilege first arises upon the doing of any act necessarily preliminary to judicial proceedings.”[5]

But, what constitutes an act “necessarily preliminary” to a judicial proceeding?

Once court called such acts “steps in the judicial process.”[6]  Another Florida court determined that communications “required by [a] section [of the] Florida Statutes” were necessarily preliminary and immunized by the litigation privilege.[7] The Supreme Court stated that immune acts were those “incidental to the proper initiation” of a judicial proceeding.[8]

In short, pre-suit notices, which “Florida law requires a plaintiff to send . . . before filing a complaint” are “necessarily preliminary” to a judicial proceeding, and thus absolutely privileged.[9]

However, that rule of thumb is not always as simple as it sounds.  The article does a deep dive on these issues and can be read here.

Enjoy!

[1] Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004).

[2] Restatement (Second) of Torts § 584, at 243 (Introductory Note: “Absolute Privilege Irrespective of Consent”).

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

[4] Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).

[5] Burton v. Salzberg, 725 So. 2d 450, 451 (Fla. 3d DCA 1999), rev. dismissed, 741 So.2d 1134 (Fla. 1999); see also Webb v. Bush, No. 2006-CA-001567, 2010 WL 5071536 (Fla. 1st Cir. Ct. March 5, 2010) (“As all the alleged defamatory statements were made during judicial proceedings or preliminary to judicial proceedings, the statement is absolutely privileged.”).

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

[7] Stewart v. Sun Sentinel Co., 695 So. 2d 360, 362-63 (Fla. 4th DCA 1997)

[8] Buckley v. Fitzsimmons, 509 U.S. 259, 277 n.2 (1993).

[9] Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 386 (Fla. 2007)