Attorney Privilege in Defamation Actions

Over the course of a legal proceeding, attorneys often have to discuss sensitive topics to zealously represent their client—this can be especially true in sexual harassment or hostile work environment cases.  Inherent to many of those cases are accusations that one person, the harasser, did something unpleasant to the victim.  While there are certainly ethical and legal consequences for bringing frivolous or meritless lawsuits, attorneys in Michigan can feel confident that their representation of their client will not end with a defamation action brought against them.  

Generally, as long a statement is made during the course of a judicial proceeding, and it is related to the matter at issue, there is an absolute immunity for the attorney; this immunity extends beyond the pleadings to letters and affidavits as well.

The Supreme Court Of Michigan, in Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 695-96 (1961), held that:

‘If statements made in the course of judicial proceedings, in pleadings or in argument, are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. They are then absolutely privileged.  It is only necessary that the language be pertinent, or, as some authors say, relevant.

In determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted (sic) with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party, or counsel, who naturally and almost necessarily identifies himself with his client, may become animated.

It has further been held as a matter of public policy that the privilege in this instance should be liberally construed so that participants in judicial proceedings may have relative freedom to express themselves without fear of retaliation. Such policy in the opinion of the court makes good sense and a presumption in favor of the relevancy of the statement arises.’ (citing Hartung v. Shau, 130 Mich. 177, 179-80 (1902)).

In Sanders, the Defendant obtained a judgment against Sanders, and the Defendant felt that Sanders was working with others to hide assets to avoid paying the judgment.  Sanders, 362 Mich. at 694.  Defendant then filed a bill of complaint to enforce the judgment against Sanders.  Id.  In the bill of complaint, Defendant accused Sanders of committing a crime.  Id. Sanders then sued for libel based on the accusation of committing a crime, but the lawsuit was dismissed at the trial court level, and the dismissal was affirmed on appeal.  Id. at 695-96.

Following Sanders, is Oesterle v. Wallace, 272 Mich. App. 260 (2006).  The court in Oesterle held that:

Statements made by judges, attorneys, and witnesses during the course of judicial proceedings are absolutely privileged if they are relevant, material, or pertinent to the issue being tried. (citing Mundy v Hoard, 216 Mich. 478, 491 (1921); Couch v. Schultz, 193 Mich. App. 292, 294-95 (1992)).

The court in Oesterle further explained that:

Immunity extends to every step in the proceeding and covers anything that may be said in relation to the matter at issue, including pleadings and affidavits. Oesterle, 272 Mich. App. at 265 (citing Couch, 193 Mich. App. at 295; Sanders, 362 Mich. at 695-96).

In Oesterle, a probate case, an attorney made a comment in a settlement letter essentially accusing the decedent’s children of improperly taking money from the safe of the decedent.  Oesterle, 272 Mich. App. at 262.  One of the children filed a defamation suit when the attorney would not retract his statement.  Id.  The suit was summarily dismissed by the trial court due to an absolute privilege held by the attorney making the statement, and the dismissal was affirmed on appeal.  Id. at 263, 268.

The Sanders decision outlined the privilege for statements made in a judicial proceeding, but the Oesterle decision is one of several that make it clear that the privilege certainly extends to attorneys and beyond the pleadings themselves.  There are of course adverse consequences for some behavior and statements, but with the above two decisions, an attorney can feel comfortable zealously representing his or her client in a case where there are inherent accusations or implications of impropriety.

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