Litigation Privilege

A frequent question we answer is, “How can they do that?” in relation to a seemingly absurd or even false position or action by the opposing party.

A legal concept known as “litigation privilege” frees lawyers to file motions and petitions and say things in letters, emails, and hearings that may contain false or inaccurate information without fear of being sued for defamation. This protection encourages zealous representation and the free flow of information in legal proceedings. The litigation privilege provides absolute immunity to attorneys for defamatory statements made in communications even preliminary to a proposed judicial proceeding, so long as the statements have some relation to that proceeding. The protection extends to communications made even before a client has formally hired the attorney, such as circulating a draft petition to a prospective client.

For those outside the legal profession, it can be surprising to learn that statements made in court filings, correspondence, or judicial hearings are not always entirely accurate or truthful. The long-standing legal principle of litigation privilege helps explain this, as it grants a form of immunity to parties and their attorneys for statements made during or in anticipation of a lawsuit. The primary rationale behind the privilege is to ensure that individuals involved in a legal dispute can speak freely and present their case without the chilling effect of a potential defamation lawsuit. The administration of justice would be hampered if lawyers and their clients were constantly self-censoring out of fear of being sued for every statement made in the course of litigation. This protection allows for a robust and adversarial process where all relevant arguments and evidence can be presented and tested.

This privilege is not without its limits. The statements must be related to a legal proceeding. A lawyer cannot, for instance, make gratuitous and defamatory statements about someone that has no bearing on a case. The privilege does not typically protect against claims of malicious prosecution, which is the act of filing a lawsuit without a legitimate basis and with a malicious intent. The privilege protects attorneys from liability for defamation irrespective of the purpose of publishing the defamatory matter, the attorney’s belief in its truth, or even the attorney’s knowledge of its falsity. The privilege is not a “license to defame,” as it is limited by the requirement of relevancy to a lawsuit. While the concept of allowing falsehoods in legal documents may seem counterintuitive, the litigation privilege is a carefully balanced legal doctrine. It prioritizes the uninhibited flow of information in the pursuit of justice, while still providing avenues for recourse against those who would egregiously abuse the protection.