PROFESSIONAL LIABILITY
In the Internet Age
By Michael Sepanik
As attorney practices
of blogging, Internet
postings, tweeting
becomes more
widespread, the current
lack of appellate guidance
will inevitably change.
Current threads,
however, do exist.
Can the Absolute
Litigation Privilege
Remain Absolute?
A centuries-old common law concept known as the absolute privilege (also referred to as the absolute litigation
privilege) has recently been examined in the context of
attorneys communicating litigation-­related information
using the Internet. The common law roots
of the absolute privilege were straightforward. Participants to a lawsuit historically have been immune from civil liability
based on statements made during the suit.
The necessity of the privilege is a fairly
common-­sense notion: unless attorneys
are protected from the potential for defamation (or related) suits, they are, or may
be, constrained in their sworn professional
duty—the zealous representation of their
clients—by fear of liability.
Recent application and interpretation
of the privilege has revealed numerous
offshoots of when, and in what circumstances, an attorney may benefit from the
protection afforded by the absolute privilege. Modern application of the privilege
often requires a fact-­intensive analysis,
one which is heavily dependent upon the
breadth of the privilege employed by a
particular jurisdiction’s appellate courts.
In addition to its historic application to
suits for defamation, the absolute privilege has been extended to claims for neg-
ligence, malicious prosecution, abuse of
process, emotional distress, business torts,
and fraud. See T. Leigh Anenson, Absolute
Immunity from Civil Liability: Lessons for
Litigation Lawyers, 31 Pepp. Law. Rev. 915,
928 (2004).
The Restatement (Second) of Torts
defines the privilege applied to litigation
attorneys as: “an attorney is absolutely
privileged to publish defamatory matter
concerning another in communications
preliminary to a proposed judicial proceeding, or in the institution of, or during the
course and as part of, a judicial proceeding
in which he participates as counsel, if it has
some relation to the proceeding.” Restatement (Second) of Torts §586. Mallon and
Smith comment that the breadth of the
Restatement version is a recognition “that
the modern version of the privilege developed especially for the benefit of litigation
attorneys” and therefore “provides more
elaborate protection than the common law-­
precedent.” Ronald Mallen & Jeffrey Smith,
Legal Malpractice §22:10 (2014 ed.).
Michael Sepanik is a trial and appellate litigator with Lee, Futrell and Perles, LLP in New Orleans. His professional liability
practice has included defending claims against attorneys, construction professionals, accountants, health care providers, and
financial institutions. Mr. Sepanik was a contributing author to DRI’s Construction Law Desk Reference and to multiple “Year-inReviews” presented at DRI’s Product Liability Conference.
■ 30 For The Defense October 2014
■
■
© 2014 DRI. All rights reserved.
The Current Boundaries
of the Privilege
Pennsylvania and Louisiana are two jurisdictions that demonstrate the practical difference between an expansive view of the
privilege and a narrow one. The Supreme
Court of Pennsylvania applies the privilege
in light of its interpretation of the public
policy rationale behind the privilege:
[T]he privilege is an integral part of a
public policy which permits all suitors, however bold and wicked, however
virtuous and timid, to secure access to
the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate. To assure
that such claims are justly resolved,
it is essential that pertinent issues be
aired in a manner that is unfettered by
the threat of libel or slander suits being
filed.… Wrong may at times be done to a
defamed party, but it is damnum absque
injuria. The inconvenience of the individual must yield to a rule for the good
of the public.
Post v. Mendel, 507 A.2d 351, 355 (Pa. 1985)
(internal citations and quotations omitted).
Louisiana applies a distinct, and rather
sparing, version of the absolute privilege.
As stated by the Louisiana Supreme Court
In other jurisdictions, a defamatory
statement by an attorney in a judicial
proceeding is absolutely privileged, if the
statement has some relation to the proceeding. In Louisiana, however, the privilege is a qualified one, and in order for
the privilege to apply, the statement must
be material and must be made with probable cause and without malice.… [T]he
privilege granted to an attorney is not a
license to impugn the professional integrity of opposing counsel or the reputation
of a litigant or witness.… No one has the
right to deem appropriate or pertinent to
an issue presented for decision in a judicial proceeding a libelous allegation that
he knows is false or that he has not just or
probable cause to believe is true.
Freeman v. Cooper, 414 So.2d 355, 359 (La.
1982). The practical effect of the variance is
that, all other things being equal, attorney-­
defendants achieving an initial dismissal
before a Pennsylvania trial judge would
likely have to navigate a full discovery
period and hope for summary judgment
when sued in the courts of Louisiana.
While the heart of the privilege lies in
statements made in open court or within
pleadings filed during a suit, actions and
statements resulting in litigation often
involve the fringes or “gray” of the privilege (i.e., actions or statements that may
or may not be related to the litigation, nor
serve a purpose in the litigation). Courts
have held the privilege to apply to: activities taken in anticipation of litigation; the
solicitation of clients for an anticipated or
existing lawsuit; filing notices of lis pendens; the filing of mechanics liens; administrative hearings (such as school boards,
planning commissions, and hospital personnel review committees); arbitrations;
and settlement communications. See Mallen & Smith, supra, at §22:10.
Jurists analyzing the absolute privilege
in the context of communications with the
press traditionally state: “an attorney who
wishes to litigate his case in the press will
do so at his own risk.” Green Acres Trust v.
London, et al., 688 P.2d 617, 623 (Az. 1984);
Bradley v. Hartford Accident & Indemnity Co., 106 Cal.Rptr. 718, 724 (Cal. 1973).
Recently, appellate courts are more willing to countenance communications with
reporters in the context of mass tort and
class action litigation. In Helena Chemical Co. v. Uribe, 281 P.3d 237 (N.M. 2012),
the Supreme Court of New Mexico held
that statements made by an attorney at a
community meeting attended by a political blogger were protected by the absolute
privilege, as the offending statements were
reasonably related to a contemplated mass
environmental tort action.
In Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn.
2007), the Supreme Court of Tennessee
held that a newspaper advertisement and
website announcement purchased by a law
firm relating to alleged defective building
materials were protected by the absolute
privilege, even though they were published
before the institution of suit and were likely
read by individuals with no connection to
the proposed suit. The Court noted, however, “the need for caution” relating to
“publications made preliminary to litigation,” and imposed four requisites to the
application of the absolute privilege in a
pre-­litigation context: (1) the communication must be made by an attorney acting in
the capacity of counsel, (2) the communi-
cation must be related to the subject matter
of the proposed litigation, (3) the proposed
proceeding must be under serious consideration by the attorney acting in good
faith, and (4) the attorney must have a client or identifiable prospective client at the
time the communication is published. Id.
at 26–27. The Tennessee approach accomplishes a desirable balance: an attorney
Attorneys hoping
to garner publicity by
posting information on
their websites or blogging
regarding new or ongoing
suits often do so without
examining the nature of the
information, and whether
it could later serve as the
basis for a defamation,
business tort, or related suit.
may solicit clients and theoretic publicity
before a suit is instituted, but in doing so
must limit their words and actions to fairly
black-and-white parameters fixed by the
Tennessee Supreme Court.
Whether because the doctrine is
seldom-­invoked or because the “fine print”
associated with its application can be time-­
consuming to digest, litigators have a tendency to assume statements they make
about a suit are always protected. Such
practice, however, involves risk. Attorneys hoping to garner publicity by posting
information on their websites or blogging
regarding new or ongoing suits often do so
without examining the nature of the information, and whether it could later serve as
the basis for a defamation, business tort, or
related suit. Two recent appellate decisions
analyzed one method by which attorneys
sought to provide information to the pubFor The Defense October 2014 31
■
■
PROFESSIONAL LIABILITY
lic—placing links to complaints that had
been filed (and were thus of public record)
onto one or more websites. The decisions
are noteworthy as they address as a matter
of first impression whether, and when, an
attorney placing case-­related information
on the Internet vitiates the absolute privilege. As described in greater detail below,
the decisions are also notable as the courts,
attorneys operating a web site and posting
links on that site allowing members of the
public to access copies of multiple iterations of the class action complaints. See id.
at passim. U. S. District Court Judge Roger
Titus presided over the federal class action
suit, and during the course of denying a
motion for Rule 11 sanctions, he characterized the defamation suit against the public
interest attorneys as a “reprehensible litigation tactic” that “significantly interferes”
with the federal class action proceeding.
The cruxof the Internet-­
As noted above, the facts presented in
Norman v. Borison were favorable from
related defamation
the perspective of one defending the public interest attorneys. Moreover, Maryallegations involved the
land has a well-­developed body of case law
on the issue, and its highest court consispublic interest attorneys
tently characterizes its interpretation of the
privilege as “broad and comprehensive” in
operating a web site and
recognition of the social and policy importance underpinning the privilege. Keys v.
posting links on that site
Chrysler Credit Corp., 303 Md. 397, 403–
04, 494 A.2d 200 (1985). Along those same
allowing members of the
lines, Maryland’s Court of Appeals rejects
“technical restrictions” on the absolute
public to access copies of
privilege as anathema. Imperial v. Drapeau,
351 Md. 38, 53, 716 A.2d 244 (1998).
multiple iterations of the
In Norman, the Court of Appeals noted
that the “umbrella of absolute privilege”
class action complaints.
protected attorneys entered in a suit so long
as the alleged defamatory statements bore
some rational relation to the suit. See id. at
while applying the same general privilege, 709. The Court of Appeals further noted the
reached disparate conclusions.
privilege extended not only to statements
made in the courtroom, but to statements
The Maryland Court of Appeals
published in documents filed in the judicial
Decision in Norman v. Borison, et al.
proceeding, and applied even if the offendIn Norman v. Borison, 17 A.3d 697 (Md. ing statements were made with malicious
2011), the plaintiff, a mortgage settlement intent or were knowingly false. See id.
attorney, alleged he was defamed by stateIn Maryland, statements contained
ments made during the course of a class-­ within complaints filed in a lawsuit fall
action lawsuit filed in the United States squarely within the protection of the abDistrict Court for the District of Mary- solute privilege. Offen v. Brenner, 402 Md.
land. The federal class-­action suit alleged a 191, 200, 935 A.2d 719 (2007); Keys v. Chrysforeclosure reversal scheme that defrauded ler Credit Corp., 303 Md. 397, 403–04, 494
homeowners in dire financial straits out of A.2d 200 (1985). In Maryland, as elsewhere,
their home equity, as well as RICO claims, a complaint is a public document. Comwire fraud, and mail fraud. Plaintiff had plaints filed in court are considered public
been a co-­owner and co-­operator of a real information under the Maryland Public Inestate settlement company where at least formation Act, and members of the public
one employee had pleaded guilty to con- have the right to examine the original or any
spiracy to commit mail and wire fraud in copy of any such document. See Md. Code
violation of 18 U.S.C. §1349. See id. at 703. Ann., State Gov’t Art. §10-611, et seq. In adThe crux of the Internet-­related defama- dition, Maryland Rule of Professional Contion allegations involved the public interest duct 3.6(b)(2) specifically permits attorneys
32 For The Defense October 2014
■
■
to publicly communicate “information contained in a public record.” In Norman, the
Court of Appeals held that, because a complaint is a public document, “Maryland law
does not limit who, where, or the extent to
which one may view that document. Thus,
publication of the by-now public federal
complaint does not bar application of the
absolute privilege. There is, too, the additional fact that republication of the complaints served the previously noted and
judicially cognizable purpose—the notification of potential class members of ongoing
litigation, in which they may have a stake.”
Norman v. Borison, 17 A.3d 697 at 717.
Thus, under Norman, a previously filed
judicial complaint may be republished
regardless of whether it is sent by one person to another via traditional mail, electronic mail, facsimile, or by posting it on
the Internet. The protected status of a judicial complaint is not revoked because it is
read by a person that is not a party to the
litigation, and is considered related to the
litigation, regardless of who reviews it, or
in what forum.
California’s Second District Court
of Appeal Decision in Cole v.
Meyer & Associates, APC, et al.
In Cole v. Meyer & Associates, APC, 142 Cal.
Rptr.3d 646 (Cal. Ct. App. 2nd Dist. 2012), a
director of a software company filed malicious prosecution and defamation claims
against attorneys for shareholders of the
software company following the conclusion
of a suit alleging fraud, breach of fiduciary
duties, and securities manipulation against
the director. Although not addressed in
detail herein, it should be noted that California permits attorney defendants (among
others) to file anti-SLAPP special motions
to strike (“SLAPP” is an acronym for strategic lawsuit against public participation). In
Cole, the California’s Second District Court
of Appeal addressed whether an attorney
placing a hyperlink to a judicial complaint
was protected by California’s version of the
absolute litigation privilege, codified under
Cal. Civil Code Section 47(b).
The Second District Court of Appeal
held republication of privileged statements
to nonparticipants to a suit is not protected
by California’s absolute litigation privilege.
See id. at 667. The court noted that even
though placing a link to a judicial com-
plaint on the Internet is not privileged,
other privileges might be applicable, such
as the fair reporting privilege, depending on facts established during discovery. Similar to the Norman decision cited
above, the seemingly simple question of
whether a discrete act (placing a link to
a judicial complaint on a website) is privileged is analyzed under a fairly complicated factual backdrop. In contrast to the
plaintiff in Norman, however, the plaintiff-­
director prosecuting the defamation and
malicious prosecution claims in Cole was
able to convincingly demonstrate on appeal
that the defendant-­attorneys filed the complaint alleging fraud and related claims
without knowledge of any specific facts to
support the claims. They also did so in the
face of their own expert’s conclusion that
the director did not know of the fraud, and
an independent legal investigation that
determined that the director did not have
knowledge of any improper business and
accounting practices. See id. at 652–54.
The timing of certain actions, or failures to act, by the defendant-­attorneys was
found to be significant. Specifically, the Second District Court of Appeal found that, despite summary judgment being granted on
all counts in favor of the plaintiff-­director
in 2007 and the Supreme Court conclusively
terminating appellate channels by denying
a petition for review in July 2009, as of August 2009, the complaint was still accessible
via hyperlink on a website associated with
the defendant-­attorneys. See id. at 666–67.
As part of its analysis of whether the absolute litigation privilege applied, the Court
noted that the defendant-­attorneys failed to
show “the complaint was published on the
Internet before a judicial proceeding, or in
connection with an issue under consideration by a judicial body.” Id. at 667.
Practice Notes
In a defamation or related case, the existence of a privilege is a question of law for
the court. Gohari v. Darvish, 363 Md. 42,
74, 767 A.2d 321 (2001). In addition, many
suits against attorneys are filed while the
tandem suit is still being litigated, which
distracts and potentially fetters the attorney in the original action. When representing attorneys in such situations, the issue
of an attorney’s immunity from suit based
on the absolute privilege should be deter-
mined at the earliest possible stage (generally as an initial motion to dismiss). If, for
whatever reason, the case is litigated and
discovery is permitted to be taken against
the attorney, the unnecessary costs, harassment, and distraction can extract time,
energy, and a largely unnecessary toll on
the attorney and her practice.
Second, counsel for defendant-­attorneys
should respectfully make clear to trial
judges the practical effect of permitting a
defamation claim to be litigated, especially
in jurisdictions where an expansive version of the privilege is recognized. When
litigating in such jurisdictions, it is in the
strong interest of justice, judicial resources
and efficiency, and the resources of the
parties for the suit to be dismissed by the
trial court, followed by appellate review
and determination of whether the absolute
privilege applies. Otherwise, the parties
are placed in a situation where significant
time and resources are expended on discovery and/or trial, only then to be followed
by an appellate court(s) determination of
whether the attorney was immune from
suit based on the absolute privilege. In such
a situation, the analogy of putting the cart
before the horse is apt.
Finally, the issue of how the statute of limitations and damages are calculated in the
context of Internet defamation is potentially
thorny, due to the ease by which the Internet
allows information to be duplicated and re-­
published quickly, mindlessly, and theoretically without limitation. Courts considering
the issue have held the single-­publication
rule traditionally applied to publishing and
mass media companies also applies to defamatory publications made on the Internet. See Firth v. State, 775 N.E.2d 463 (N.Y.
App. 2002); see also Traditional Cat Assoc.,
Inc. v. Gilbreath, 13 Cal.Rptr.3d 353 (Cal.
Ct. App. 4th Dist. 2004). In the same sense
that a book publisher should not face additional monetary liability (or the potential
for a new suit) each time a previously-­sold
book finds its way to a particular consumer,
neither should the publisher of information
on the Internet. The single-­publication rule
in the context of Internet publication will be
further refined and developed, as the multiplicity and variety of re-­publication and dissemination offered by the Internet goes far
beyond the offerings of traditional book and
mass-media publication.
Conclusion
There is a dearth of case law addressing
attorney practices of blogging, Internet
postings, tweeting, and the like. As such
activity has become widespread, the lack
of appellate guidance is surprising; however, that will inevitably change. Based on
the present body of case law on point, certain threads are notable. Courts appear
Courts appearmore
willing to permit attorneys
to disseminate case-­
related information on the
Internet where, prior to
“posting,” attorneys take
efforts to confirm the
accuracy of the information
and specifically tailor the
factual averments made (as
opposed to pleading first
and ascertaining facts later).
more willing to permit attorneys to disseminate case-­related information on the
Internet where, prior to “posting,” attorneys take efforts to confirm the accuracy
of the information and specifically tailor
the factual averments made (as opposed to
pleading first and ascertaining facts later).
This is a logical approach that helps mitigate the danger of near-­effortless republication and mass-­dissemination associated
with the Internet by requiring a greater
certitude and reliability of the information
attorneys place into the Internet stream.
Courts may also require that case-­related
information placed onto the Internet satisfy a more exacting test of relation to a suit,
and may limit, for instance, pre-suit Internet publicity to mass-tort or class-­action
suits.
For The Defense October 2014 33
■
■