Clients often seek an advantage in litigation by publicly discussing an ongoing case. This article explains the perils of doing so.
Envision yourself representing a client, Cutting Edge, Inc., that is furious with its main competitor, Newco, LLC.1 Cutting Edge claims that Newco has illegally infringed on its trademarks. At Cutting Edge's request, you drafted and filed a complaint.
Shortly thereafter, the president of Cutting Edge telephoned you. He explained that he authors a blog on Cutting Edge's website. He said he would like to address the lawsuit in the blog. Because you had concerns regarding the president inadvertently defaming Newco, you told him not to do so for the time being.
A few days later, the president e-mailed you. He stated that he understood your concerns as to what he might say in his blog and that he has a way around the problem. Rather than post his views on the lawsuit on the Internet, he suggested that he simply mail a copy of the complaint to publishers of the leading trade magazines in his industry. Once again, you temporarily dissuaded him.
It is now four days later, and the president has unexpectedly appeared in your law firm's reception area. He tells you that, although he has notified no one of Cutting Edge's lawsuit, the media has learned of it. The president has received a call from a local reporter. The president would like to know if you approve of his agreeing to be interviewed.
The president senses your hesitancy and states, "Look, I still want to blog about the case and share the complaint with people in my industry so they will know that Newco cannot be trusted. But even if I can't do that, I don't see how you can tell me it's wrong for us to honestly answer questions posed by a reporter. I mean, in America there are still such things as freedom of the press and free speech, right?!"
You tell the president that you would like one more day to consider the risks of the various courses of action he would like to take. He reluctantly agrees to give you until the following morning to conduct research.
The litigation privilege
Lawyers and their clients commonly accuse their opposition of unlawful conduct in the course of litigation. Complaints and counterclaims alleging negligence and fraud are routine. Likewise, defamatory statements are made in oral arguments, testimony, affidavits, motions, pleadings and letters to opposing counsel. Why is it that these statements do not lead to further litigation?
The answer is the "litigation privilege." In Illinois, this privilege provides immunity from civil lawsuits for defamatory statements made during the course of litigation so long as the defamatory matter is "pertinent to the proceeding."2
Moreover, the requirement that the defamatory allegation be "pertinent to the proceeding" is not strictly applied.3 The privilege attaches where the defamatory statement has some reference to the subject matter of the litigation, even if it is not strictly relevant to any particular issue.4
The litigation privilege allows persons with knowledge of facts relevant to a lawsuit to report them for litigation purposes without fear of civil liability.5 If such a privilege did not exist, litigation would feed on itself. That is, virtually whenever a party felt falsely accused, filing a defamation claim would be a possibility.
The Restatement (Second) of Torts, which is often cited by Illinois courts, differentiates between a party's litigation privilege and the attorney's litigation privilege.6 However, the descriptions of the privileges are the same except with respect to who has the right to assert each privilege - a party as opposed to a party's attorney. Thus, the litigation privilege applies to both a private litigant as well as the litigant's attorney.7
The attorney litigation privilege applies to out-of-court communications between opposing counsel8 and to out-of-court communications between attorney and client related to pending ligation.9 It also applies to out-of-court communications between attorneys representing different parties suing the same entities.10 It covers attorney statements made during quasi-judicial proceedings11 and to communications necessarily preliminary to a quasi-judicial proceeding.12
Ultimately, the litigation privilege protects both parties and their counsel from claims based on statements made in conjunction with litigation. However, if a person makes statements for purposes not relating to advancing the proceedings, he or she will no longer be able to use the privilege as a shield. To answer Cutting Edge's president's questions, you must decide whether he is likely to make defamatory statements and, if so, whether the litigation privilege will protect Cutting Edge.
Blogging about a pending case
The first issue you were asked to consider is whether Cutting Edge's president should blog about his ongoing lawsuit. Similarly, you might wonder about the wisdom of your client's posting comments concerning ongoing litigation on social media sites such as Facebook. The simple answer is, "Don't do it."
Although there is a constitutional right to free speech, there is no constitutional right to defame.13 A statement is considered defamatory "'if it tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him.'"14 Here, the very reason your client wants to publicize the case is to tell people that, "Newco cannot be trusted."
Your problem is that the president will probably make statements about Newco, in his blog entry, that Newco maintains are false. Next, Newco is likely to file a claim against Cutting Edge for defamation.15 To prevail on such a claim, Newco must show that (a) your client made a false statement about Newco, (b) there was an unprivileged publication to a third party by your client, and (c) that the publication damaged Newco.16
Defamatory statements can be either defamatory per quod, meaning extrinsic facts are necessary to explain the defamatory character of the statements, or defamatory per se.17 There are four categories of statements that are considered defamatory per se: (1) words that prejudice a party, or impute lack of ability, in his or her trade, profession or business; (2) words that impute an inability to perform or want of integrity in the discharge of duties of office or employment; (3) words that impute the commission of a criminal offense; or (4) words that impute infection with a loathsome communicable disease.18
Given the elements of defamation, it is quite likely that if Cutting Edge's president blogs about a pending suit, he will expose his company to such a claim. Of course, your client might succeed in defending such a claim - perhaps because another privilege protects the statement or perhaps because "truth" is always a defense to a defamation claim.19 But the time, effort and expense of defending such a claim, especially given the uncertainties associated with litigation, will likely outweigh any satisfaction your client would obtain from posting on a blog.
Distributing a court filing
Cutting Edge is also considering distributing a copy of its complaint to magazines. This is not surprising - clients sometimes wish to distribute court filings to third parties to establish they are in the right. This is probably because clients are aware that filings are publicly available and that some form of protection must exist for statements made within them.
It would be unwise for Cutting Edge to share its complaint with people who are not otherwise involved in the litigation. Although there is no Illinois case directly on point, Kurczaba v Pollock,20 a first district appellate opinion, is instructive. There, an attorney-plaintiff sued another lawyer for distributing an amended complaint, which asserted that the plaintiff had engaged in dishonesty, deception, fraud, and professional malfeasance.21
The plaintiffs alleged that they were damaged as a result of the defendant sending the amended complaint to various individuals and institutions, including the Department of Labor and the Chicago Tribune.22 On appeal, the first district found that the amended complaint was not protected by the litigation privilege because the trial court never gave the plaintiff leave to file it.23 Still, the court analyzed whether, if leave had been granted, the litigation privilege would apply.
The court observed that the parties to whom the amended complaint was disseminated had no substantive connection to the underlying action. Then, the first district concluded that the litigation privilege did not apply, stating, "Illinois clearly limits the attorney litigation privilege and has refused to extend it to third-party communications unrelated to a lawsuit."24
In making its point, the court quoted a Florida opinion stating, "why should a person be absolutely privileged to
defame another in the course of a judicial proceeding by making slanderous statements wholly outside of the inquiry before the court? We think it is unnecessary to carry the doctrine so far."25 The first district's analysis in Kurczaba indicates that the litigation privilege will not protect a party who chooses to distribute a complaint to individuals or entities who are not involved in the pending litigation.26
Speaking with reporters
The president of Cutting Edge has received a call from a reporter regarding his case. Like many clients in this situation, he would like to tell his version of what happened to the media. Indeed, attorneys themselves are often anxious to share their client's story with the public while also getting free exposure for themselves.
Speaking with the media, however, is fraught with peril. As the first district has stated, the fact that a party has a privilege to make defamatory statements before a court does not mean the party is also free to do so to third parties such as media.27 Although there are no Illinois appellate opinions addressing the issue at length, numerous other jurisdictions have held that statements made to the media regarding an ongoing case are not protected by the litigation privilege.28
The most well-known such case may be Rothman v Jackson.29 In this California action, an attorney alleged that he had been hired by a man and his son to seek redress for alleged torts against the boy by singer Michael Jackson.30 The attorney contacted Jackson to negotiate on behalf of his clients.
While negotiations were taking place, a psychological evaluation of the boy was leaked to the media. This resulted in tremendous amounts of unfavorable publicity for Jackson. Jackson and his attorneys then called a press conference.31
At that press conference and thereafter, Jackson denied wrongdoing. He also accused the attorney and his client of knowingly and intentionally making false accusations to extort money from him. The attorney sued Jackson for several torts, including defamation.32
California's appellate court stated that the privilege only protects communicative acts that "function as a necessary or useful step in the litigation process."33 The court found that:
The litigation privilege exists so that persons who have been harmed or have other grievances calling for redress through the judicial processes can and will use the courts, rather than self-help, to obtain the relief….Public mud-slinging, while a less physically destructive form of self-help than a public brawl, is nevertheless one of the kinds of unregulated and harmful feuding that courts and their processes exist to prevent.34
As in Rothman, the vast majority of jurisdictions have found that the litigation privilege generally does not protect communications with reporters.35 Accordingly, a client who discusses a dispute with the media opens himself to claims for defamation, among others. Thus, Cutting Edge's president should decline to be interviewed.
There is usually an emotional component to litigation. Moreover, given the slow rate at which cases lumber forward, it is not uncommon for clients to lose patience and wish to inform others of how they have been mistreated. However, judges do not look kindly upon either attorneys or litigants that seek to try their cases in the media.
Ultimately, arguing one's case on the Internet or through third parties is likely to do far more harm than good. The opposing party may base new claims on your client's comments. Hence, the wiser course is to focus your client's efforts on prevailing on the existing claims rather than risk creating new ones through making public statements.
Richard L. Miller II <firstname.lastname@example.org> is a partner at Novack and Macey LLP in Chicago, where he concentrates his practice in commercial litigation.
1. The entities and events portrayed in the introduction to this article are fictitious. Any similarity to real entities or persons, currently or formerly in existence is coincidental and not intended by the author.
2. Defend v Lascelles, 149 Ill App 3d 630, 639, 500 NE2d 712, 718 (4th D 1986).
3. Popp v O'Neil, 313 Ill App 3d 638, 644, 730 NE2d 506, 512 (2d D 2000).
4. Malevitis v Friedman, 323 Ill App 3d 1129, 1131, 753 NE2d 404, 407 (2d D 2001) (courts resolve all doubt in favor of a finding of pertinency of the statement to the litigation); Restatement (Second) of Torts § 586, comm c (2010).
5. Defend at 634, 500 NE2d at 715.
6. Restatement (Second) of Torts §§ 586 & 587 (2010) (§ 587, comm d states, "the rule stated in this Section affords to a party in litigation the same protection from liability for defamatory statements made in his pleadings as that accorded to an attorney under the rule stated in § 586").
7. Thompson v Frank, 313 Ill App 3d 661, 664, 730 NE2d 143, 145 (3d D 2000).
8. Dean v Kirkland, 301 Ill App 495, 510, 23 NE2d 180, 187-88 (1st D 1939).
9. Weiler v Stern, 67 Ill App 3d 179, 183, 384 NE2d 762, 764-65 (1st D 1978).
10. Libco Corp v Adams, 100 Ill App 3d 314, 317, 426 NE2d 1130, 1132 (1st D 1981).
11. Richardson v Dunbar, 95 Ill App 3d 254, 257, 419 NE2d 1205, 1208 (1st D 1981).
12. Parrillo, Weiss & Moss v Cashion, 181 Ill App 3d 920, 926, 537 NE2d 851, 854 (1st D 1989).
13. Bryson v News America Publications, Inc, 174 Ill 2d 77, 99, 672 NE2d 1207, 1219 (1996).
14. Rose v Hollinger Intl, Inc, 383 Ill App 3d 8, 11, 889 NE2d 644, 647 (1st D 2008), quoting Kolegas v Heftel Broadcasting Corp, 154 Ill 2d 1, 10, 607 NE2d 201, 206 (1992).
15. This is not the only cause of action Newco may bring. Others might include negligent infliction of emotional distress, intentional infliction of emotional distress, tortious interference with expectancy and tortious interference with contract. The litigation privilege will not protect a client from these other types of claims. See Zdeb v Baxter Intl, Inc, 297 Ill App 3d 622, 629-30, 697 NE2d 425, 430 (1st D 1998) (limiting protection of the privilege to defamation and false light actions); Conditioned Ocular Enhancement v Bonaventura, 458 F Supp 2d 704, 708 (ND Ill 2006) (stating Illinois' absolute litigation privilege cannot defeat a federal cause of action and that, as to Illinois claims, is limited to defamation or false light actions).
16. Gibson v Philip Morris, Inc, 292 Ill App 3d 267, 272, 685 NE2d 638, 643 (5th D 1997).
18. Id; see also Moore v People for the Ethical Treatment of Animals, Inc, 402 Ill App 3d 62, 68, 932 NE2d 448, 455 (1st D 2010) (listing a fifth category of statements that constitute defamation per se: "those imputing adultery or fornication").
19. Beauvoir v Rush Presbyterian-St. Luke's Med Ctr, 137 Ill App 3d 294, 300, 484 NE2d 841, 844 (1st D 1985) (finding that statement made by a supervisor to an employee in front of others, to tell the employee the reasons for his discharge, were conditionally privileged); Moore at 70, 932 NE2d at 457 ("A defendant is not liable for a defamatory statement if the statement is true.").
20. 318 Ill App 3d 686, 742 NE2d 425 (1st D 2000).
21. Id at 691, 742 NE2d at 431 (when mailing the amended complaint to the third parties, the defendants also enclosed a copy of an advertisement from the plaintiff's law firm).
23. Id at 703, 742 NE2d at 439.
24. Id at 705, 742 NE2d at 440.
25. Id at 706, 742 NE2d at 442, quoting Pledger v Burnup & Sims, Inc, 432 So2d 1323, 1326 (Fla App 4th D 1983). See also Bochetto v Gibson, 580 Pa 245, 250, 860 A2d 67, 71 (2004) (under Pennsylvania laws, litigation privilege did not apply to sending of a complaint to a reporter).
26. See Kiernan v Williams, 2006 WL 2418861 at *7 (NJ Super 2006) (unpublished opinion holding, under New Jersey law, "Distribution to the press of court-filed documents is not protected because it bears no relation to the purpose of the privilege, and only serves the interest of the distributor."); see also Bender v Smith Barney, Harris Upham & Co, Inc, 901 F Supp 863, 871 (DNJ 1994) (under New Jersey law, litigation privilege does not protect the purposeful dissemination of defamatory allegations contained in an NASD pleading to a magazine reporter).
27. Lykowski v Bergman, 299 Ill App 3d 157, 166, 700 NE2d 1064, 1071 (1st D 1998).
28. Sunstar Ventures, LLC v Tigani, 2009 WL 1231246 at *6 (Del Super) (under Delaware law, party's statements during a newspaper interview concerning a soon to be filed action not privileged); Pratt v Nelson, 164 P3d 366, 377 (Utah 2007) (under Utah law, statements made by an attorney and client at a press conference are not privileged); World Wresting Fed Entertainment, Inc v Bozell, 142 F Supp 2d 514, 534 (SDNY 2001) (under New York law, judicial proceedings privilege protects statements made by parties and their attorneys related to litigation but does not extend to protect allegedly defamatory statements made on radio and television programs); Barker v Huang, 610 A2d 1341, 1346 (Del Supr 1992) (under Delaware law, "statements made outside of the course of judicial proceedings, such as those made during a newspaper interview concerning judicial proceedings, are not accorded the protection of the absolute privilege."); Green Acres Trust v London, 141 Ariz 609, 614-15, 688 P2d 617, 622-23 (1984) (under Arizona law, parties' lawyers are not absolutely privileged to publish oral and written communications to newspaper reporter); Asay v Hallmark Cards, Inc, 594 F2d 692, 699 (8th Cir 1979) (Iowa law does not grant an absolute privilege for the dissemination of a complaint by a party or party's attorney to news services); Barto v Felix, 250 Pa Super 262, 267, 378 A2d 927, 930 (1977) (under Pennsylvania law, judicial immunity does not protect a public defender's remarks that were made at a press conference ); Kennedy v Cannon, 229 Md 92, 97, 182 A2d 54, 58 (1962) (under Maryland law, attorney's statement to editor of newspaper regarding his criminal client's defense is not protected by litigation privilege).
29. 49 Cal App 4th 1134, 1138 (2d D 1996); see also Jacobs v Herlands, 17 NYS 2d 711, 712 (1940) (under New York law, lawyer's summoning of reporters and providing a statement is not protected by the absolute privilege).
30. Rothman, 49 Cal App 4th at 1338.
32. Id at 1388.
33. Id at 1146.
35. Med Informatics Engineering v Orthopaedics Northeast, PC, 458 F Supp 2d 716, 724 (ND Ind 2006) (stating that communications made to newspaper and during press conferences have been almost universally found to be excluded from the protection of the absolute privilege).