By Caroline Johnson Levine
Florida courts have historically provided absolute immunity to “judges, counsel, parties, and witnesses from liability for alleged defamatory statements made in the course of a judicial proceeding.” See Delmonico v. Traynor, ― So. 3d ―, SC10-1397, 2013 WL 535451 (Fla. 2013). In fact, the Florida Supreme Court had established in Myers v. Hodges, 44 So. 357 (Fla. 1907), “the principle of the litigation privilege in Florida, essentially providing legal immunity for actions” taken or statements made in the course of pending litigation. See Echevarria, McCalla, Raymer, Barrett, & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007). However, the Supreme Court recently qualified or withdrew that privilege for attorneys in the type of circumstances demonstrable in Delmonico.
Daniel Delmonico sued Tony Crespo and Donovan Marine, Inc., because Delmonico believed that Donovan’s employee, Crespo, had defamed Delmonico. Crespo’s defamatory statements asserted that Delmonico had purloined Donovan’s clients by supplying female escorts to Delmonico’s potential customers. Consequently, Crespo and Donovan hired attorney Arthur Traynor to defend against Delmonico’s defamation lawsuit.
As the attorney defending and investigating the underlying Crespo suit, Traynor repeatedly alleged to potential witnesses that Delmonico had supplied prospective customers with female escorts and that Delmonico was being criminally prosecuted for the illegal activity. Based upon Traynor’s allegations, Delmonico’s customers chose to abrogate their business contracts with Delmonico, resulting in a documented financial loss of at least $7 million. Delmonico subsequently filed a defamation suit against Traynor, due to Traynor’s scandalous accusations made to potential witnesses in the Crespo suit. Traynor filed a motion for summary judgment in the new lawsuit against him and claimed that as an attorney defending an underlying lawsuit, his statements were absolutely privileged.
In Delmonico, the Supreme Court narrowed the absolute immunity privilege by finding that it applies in the types of legal proceedings that occur in a courtroom, in depositions, and in pleadings. However, the court refused to extend the privilege to “statements made by an attorney during ex-parte, out-of-court questioning of a potential, non-party witness while investigating matters connected to a pending lawsuit.” See Delmonico, 2013 WL 535451. Further, the court found that a “qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.” Id. Importantly, a defendant’s qualified privileged “requires the plaintiff to establish express malice” by the defendant. Id. However, when the litigator’s defamatory statements are not related to the underlying lawsuit, the Supreme Court found that “the defendant is not entitled to the benefit of any privilege.” Id.
Therefore, an attorney’s choice to defame parties in pending litigation could result in civil liability. Accordingly, a litigator must always consider whether his statements to non-party witnesses could be construed as defamatory, even if the statements are solely intended to elicit relevant information in an investigation.
