Monday, August 20, 2007

Pre-Suit Litigation Privilege

A Tennessee law firm solicited business through a newspaper ad and website against a manufacturing company that sells screw fasteners for use in outdoor wood decks. The company sued the law firm in federal district court for defamation alleging that the law firm had falsely communicated that their product was defective. The federal district court certified to the Tennessee Supreme Court the question whether an absolute litigation privilege applied.

The supreme court held that the litigation privilege applies to pre-litigation communications if: made in the capacity of counsel, relating to the subject matter of litigation, "the proposed proceeding must be under serious consideration by the attorney acting in good faith", and with a client or an identifiable prospective client when the communication is published.  However, "attorneys do not have an unfettered license to defame their adversaries." An attorney who "exceeds the bounds of permissible conduct may face collateral consequences" including malpractice, Rule 11 sanctions or bar discipline. (Mike Frisch)

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