FL: Underlying defamation action
This post is contributed by Warren Trazenfeld, Esq. of Coral Gables, FL.
Adapted from his article appearing in the Daily Business Review (c) 2013 ALM Media Properties, LLC, which has granted permission.
FACTS: The underlying case was a defamation action by DelMonico against business competitor Donovan Marine Inc. DelMonico claimed a Donovan sales representative told clients that he had supplied prostitutes to the owner of a company doing business with Donovan in an effort to lure away DelMonico’s clients. Donovan hired attorney Arthur Traynor to defend it against DelMonico’s claims.
Traynor interviewed potential witnesses ranging from business associates to DelMonico’s ex-wives. In those ex-parte interviews, Traynor allegedly represented that DelMonico was being prosecuted for involvement in prostitution, and upon threat of their becoming involved, sought information from them. Eventually, some of those witnesses provided affidavits to DelMonico outlining Traynor’s alleged statements and alleged unethical conduct.
While Traynor denied telling anyone DelMonico was being prosecuted for prostitution, he was subsequently named as a party to the defamation action when DelMonico sued Donovan for defamation and tortious interference. The trial court granted Traynor and his law firm summary judgment, which was affirmed on appeal, though in a split decision. The lower courts’ rulings were based upon a finding that interviewing a witness in preparation for and connected to pending litigation was absolutely privileged. DelMonico appealed to Florida’s Supreme Court, contending that the privilege, as here applied, should not be absolute.
ISSUE: Does Florida’s absolute privilege, which shields judges, counsel, parties, and witnesses from liability for alleged defamatory statements made in the course of a judicial proceeding, extend to statements made by an attorney during ex-parte, out-of-court communications connected to a pending lawsuit?
RULING: No. The Florida Supreme Court reversed. The Court made a distinction between in-court statements having safeguards in place to assure candor and out-of-court statements which are not as closely monitored and thus pose the potential for attorneys to stray from the truth with perceived impunity. The Court held that Florida’s absolute privilege was never intended to allow attorneys to interview witnesses without being responsible for defamatory statements. It therefore imposed a two-part test to be applied in attorney defamation cases. First, the trial court must determine if the statements are “connected with or related to the subject of inquiry in the underlying lawsuit.” If the trial court decides the statements are not connected, the attorney has no privilege at all. If the allegedly defamatory statements are found to be connected to the underlying lawsuit, a qualified privilege applies and the plaintiff must prove express malice (intent to injure). Absent a connection, that burden is not put upon the plaintiff.
LESSON: Under Florida law, an attorney may be subject to a defamation action for out-of-court statements made during the course of representing a client, as an absolute litigation privilege does not extend to such communications. To avoid this potential liability, the prudent attorney should use the other tools at his disposal for communicating with witnesses and investigating claims, such as depositions or interviews conducted by independent third parties, such as investigators. While those approaches lack some of the advantages of the impromptu interview (such as speaking to a witness who lacks preparation or including an adversary in the dialogue), they have the benefit of shielding the attorney from a lawsuit based in defamation, as an absolute litigation privilege is not available to attorneys for their ex-parte communications with potential witnesses.
Warren R. Trazenfeld, Esq., focuses his civil trial practice on suing negligent attorneys and accountants for malpractice. He has previously represented DelMonico, but is not involved in the case which is the subject of this article.
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Posted in: Florida