Out-of-Court Statements Made by Attorneys Are Subject to a Lesser Standard for Defamation

March 21, 2013

Authors: Sean M. McDonough, Anthony P. Strasius

In DelMonico v. Traynor, No. SC10-1397 (Fla. February 14, 2013), the Florida Supreme Court expanded the potential liability of attorneys for defamation lawsuits. Traditionally, lawyers, judges and other judicial officers enjoyed absolute immunity for defamatory statements made in court proceedings or in depositions so long as the alleged defamatory statement was somehow related to the subject matter of the lawsuit. With the Florida Supreme Court’s recent decision, that is no longer the case. Rather, attorneys will now enjoy only a “qualified” privilege, which will allow lawyers to be sued for intemperate, inappropriate or defamatory remarks made outside the court or deposition room. However, if the statement or remark is somehow related to the underlying lawsuit, the lawyer will still enjoy a “qualified” privilege, which the claimant can overcome only by proving that the lawyer’s comments were made with “express malice”; that is, that the lawyer’s primary motive in making the statement was the intent to injure the reputation of the claimant.

In the DelMonico case, a lawyer was retained to represent a boat distributor who was sued by the president of a competitor for defamation. The company president alleged that the defendant had made statements accusing him of supplying prostitutes to customers. As part of his investigation of the case, the defense lawyer contacted several of the ex-wives of the company president as well as several of his customers. In interviewing these potential witnesses, the defense lawyer allegedly told them that the company president was being “prosecuted for prostitution.” The company president then filed a second defamation action, this time against the defense lawyer.

The trial court initially entered a summary judgment in favor of the defense lawyer holding that he was “absolutely immune” for any statements made to the witnesses. The intermediate appellate court affirmed the summary judgment, likewise holding that the defense lawyer was “absolutely” immune.

The Florida Supreme Court reversed and held that “Florida’s absolute privilege does not extend to statements made by an attorney during ex parte out-of-court questioning of a potential, non-party witness in the course of investigating a pending lawsuit.” Instead, only a qualified privilege will apply “so long as the defamatory statements are related to or connected with … the underlying lawsuit.”

The court reasoned that the absolute privilege that applies to a formal judicial setting should not be applicable to informal, out-of-court investigations. In formal court proceedings or depositions, potential victims of defamatory statements are afforded some protection. Sanctions can be imposed by the judge or defamatory statements can be stricken from the record. These safeguards, however, are not available during an informal witness interview, which may take place without any recording or the presence of opposing counsel. Under such circumstances, the court reasoned that there is an increased risk of damage to a person’s reputation that should not be protected by an “absolute” privilege.

In summary, the DelMonico decision increases the litigation risk of attorneys practicing in Florida. If they do not already do so, attorneys practicing in Florida would be well advised to exercise discretion when interviewing witnesses or engaging in other out-of-court activities.

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