A Florida lawyer sued for slandering a party to another lawsuit was the subject of a recent opinion from the Florida Supreme Court. In Delmonico v. Taylor, the court held that lawyer who was sued was not entitled to the absolute litigation privilege, which applies to judges, lawyers, and other participants in litigation. The court held this privilege did not apply to the lawyer’s out-of-court statements to witnesses he was interviewing during the lawsuit.
The lawyer being sued for slander was representing a client who had been sued by a business competitor. In that underlying lawsuit, the plaintiff, the president of a company, alleged that the defendant slandered him by claiming that he had used prostitutes to lure away customers. The lawyer for the defendant then contacted several witnesses, including the ex-wives of the company president. During his interviews, he allegedly made the statement that the president of the company was being prosecuted for using prostitutes in his business dealings. The plaintiff then sued the lawyer, alleging that he defamed the company president by making these statements to the witnesses during the interviews.
The Florida Supreme Court had previously adopted an absolute privilege for lawyers and litigants who make statements during the course of a lawsuit. That privilege protects a lawyer for any statements made during the course of the lawsuit. This meant that no one could sue a lawyer for making defamatory statements during a lawsuit, so long as the statements were related to the lawsuit in some way. In previous cases, the alleged defamation occurred during the lawsuit in a way that allowed the judge to safeguard the interests of the defamed person.
The ruling in this new case is that that absolute privilege does not apply to an attorney who is being sued for making defamatory statements during out of court, “ex parte” interviews with witnesses (in the absence of opposing counsel):
[W]e conclude that in situations like the one present here, where 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….we conclude that Florida’s absolute privilege was never intended to sweep so broadly as to immunize an attorney from liability 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.
The court held that only a qualified privilege would protect the lawyer under these circumstances. The qualified privilege requires that the plaintiff show that the attorney made the statements with express malice. This means that the primary motive in making the statement was the intent to injure the reputation of the plaintiff. This qualified privilege applies to any statement that is related to the subject of inquiry in the underlying lawsuit. Statements unrelated to the underlying lawsuit are not protected by any privilege.
In reaching this holding, the court balanced “the competing interest of the individual’s right to be protected from false statements with the judicial system’s need in free and open disclosure of facts.”