The Litigation Privilege – Statements in Lawsuits Cannot Support Slander or Any Other Cause of Action
Often the defendant to a civil lawsuit feels that the statements and allegations made by the plaintiff in the lawsuit or the complaint are slanderous. Frequently, we receive calls from such parties who want to know if they can pursue a claim against the opposing party or their attorney for making those statements. However, Florida has long recognized that statements made in pleadings or in connection with judicial proceedings are entitled to absolute immunity and cannot form the basis for a lawsuit, even if those statements could otherwise be considered libelous and slanderous.
This concept is known as the litigation privilege. “The litigation privilege was first recognized in Florida in 1907 to provide legal immunity for actions that occur in judicial proceedings.” Wolfe v. Foreman, 128 So. 3d 67, 68 (Fla. 3d DCA 2013) (citing Myers v. Hodges, 44 So. 357 (Fla. 1907)). In short, “[a] statement claimed to be defamatory, made in the course of a judicial proceeding, is privileged provided the statement be pertinent to the law suit ….” Sailboat Key v. Gardner, 378 So. 2d 47, 48 (Fla. 3d DCA 1979). “Such has been the holding of the Florida courts.” Id.
Attorneys are crafty creatures. Since earlier decisions only referenced immunity for slander and libel, attorneys attempted to argue that the litigation privilege did not apply to other causes of actions. However, “in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994), the Florida Supreme Court extended the litigation privilege, already applicable to defamatory statements (slander and libel) and perjury, to all other torts so long as the act complained of occurs during and has some relation to the proceedings ….” Wolfe, 128 So. 3d at 68–69.
In Levin, the Florida Supreme Court noted, “[t]raditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry.” Levin, 639 So. 2d at 607. “Consequently, the torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable.” Id. at 608. “The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well.” Id.
The Court noted, “[t]his absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings.” Levin, 639 So. 2d at 608. Determining the latter outweighed the former, “courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id. “Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.” Id.
Ultimately, the Supreme Court held in Levin, “we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as … alleged misconduct … so long as the act has some relation to the proceeding.” Levin, 639 So. 2d at 608. However, attorneys are crafty creatures. They continued to attempt to carve out exceptions to the litigation privilege.
“Thirteen years after Levin, the Florida Supreme Court clarified that ‘[t]he litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin,’ and reaffirmed that ‘[a]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding … so long as the act has some relation to the proceeding.’” Wolfe, 128 So. 3d at 69 (quoting Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007)). See also, LatAm Invs., LLC v. Holland & Knight, LLP, 88 So. 3d 240, 242 (Fla. 3d DCA 2011) (litigation privilege applies to abuse of process claims where the conduct occurred during and was related to the judicial proceedings); Am. Nat’l Title & Escrow of Fla. v. Guarantee Title & Trust Co., 748 So. 2d 1054, 1055 (Fla. 4th DCA 2000) (same).
Specifically, the Florida Supreme Court held, “[g]iven the precedent established by Levin, we hold that the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007). As the Third District has observed, “the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions ….” Wolfe, 128 So. 3d at 70 (emphasis in original). In Wolfe, the Court held, “we are obligated to conclude that the act complained of here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.” Id.