On February 14, 2013, the Florida Supreme Court handed down its decision in Delmonico v. Traynor, which was somewhat less than a Valentine’s Day card to lawyers around the State of Florida. Historically, a lawyer engaged in litigation and pre-litigation investigation of matters has enjoyed an absolute privilege that protects him or her from being sued in tort for comments made or conduct engaged in while handling the litigation on behalf of a client. Yesterday, the Florida Supreme Court articulated a new rule, concluding that when a lawyer is investigating a matter in litigation, but engages in ex parte communications with a non-party witness, comments made to that witness that result in harm to one of the parties are actionable in tort. The lawyer may not invoke an absolute privilege, but rather only a qualified privilege, provided the comments were related to the substance of the litigation.
In Delmonico, the lawyer had met privately with third-party witnesses as part of his investigation of a defamation claim asserted against his defendant client. The alleged defamation arose from assertions that the lawyer’s client had claimed that the plaintiff had provided prostitution services in order to lure clients away from the defendant. In the course of his investigation, the lawyer repeated to the witnesses (and perhaps elaborated upon) the assertion that the plaintiff had provided prostitution services and was even being prosecuted for prostitution. The plaintiff filed a second, separate lawsuit against the lawyer and his firm, asserting that the lawyer had also defamed the plaintiff and tortiously interfered with the plaintiff’s business relationships, causing a loss of several million dollars.
The trial court, upon motion of the lawyer, granted summary judgment and concluded that the lawyer’s conduct and statements as part of his investigation of the underlying defamation action were absolutely privileged, as being part of ongoing judicial proceedings. The Fourth District Court of Appeal affirmed, in a 2-1 decision. Judge Warner dissented, setting forth the basis for what would ultimately become the Supreme Court’s decision.
The Supreme Court agreed with Judge Warner’s “scholarly” dissent and concluded that the absolute privilege was not available to the lawyer under the facts of the case. Instead, since the comments made were arguably related to the subject matter of the underlying litigation, the lawyer would be permitted to invoke a qualified privilege, which in turn would force the plaintiff to prove not only that the comments were false, but that they were made with malice. The practical upshot of this new rule, however, is that the lawyer is subjected to having to litigate the secondary defamation claim against him or her, rather than effectively being immune from suit. The Court concluded that this represented a more appropriate balance between the competing policies of allowing a lawyer to freely investigate a claim asserted against his or her client and protecting individuals and companies from needless defamation and other tortious conduct.
At the heart of the Court’s announcement of this new rule was a concern about the ex parte nature of the communication, where opposing counsel would not have had an opportunity to respond to the assertions. As such, lawyers making comments in the course of hearings, depositions, mediations, etc., will continue to enjoy an absolute privilege. New care must be taken, however, with respect to comments made privately to potential witnesses in the course of investigating a client’s defense. As the cliché now applies to counsel: “Whatever you say may be used against you in a court of law.”
Attorneys in WSH’s Appellate Practice Group, led by Partner Edward G. Guedes, include Florida Board-certified experts, and have a record of success pursuing and defending appeals of final judgments and verdicts, as well as non-final, interlocutory appeals, on behalf of public and private sector clients throughout the State. In addition, the Group’s attorneys, with keen insight into appellate procedures and the current state of the law on various procedural and substantive issues, also provide invaluable trial/litigation support to our Litigation Division on a daily basis.
Author(s): Edward G. Guedes
