Tuesday, April 28, 2015

Litigation Privilege Protects Disparaging Opening Statement

The Maryland Court of Special Appeals has held that the litigation privilege requires dismissal of an action brought by a party ("OBG") who had settled a claim with a mutual non-disparagement clause.

After the settlement, the other party went to trial against another defendant. 

This claim was based on OBG's contention that the plaintiff's attorney violated the provision in opening statement by accusations against the defendant who had settled.

Well over 100 years ago the Court of Appeals recognized in Maryland common law an absolute litigation privilege that immunizes litigation participants from liability in tort for words spoken or written in the course of a judicial proceeding. It crafted an absolute litigation privilege for Maryland that is a hybrid of the English and American versions of that privilege. Lawyers are protected by the American version, which immunizes them from liability in tort for words spoken or written in the course of a judicial proceeding so long as the words are relevant to the proceeding... (citations omitted)

Lawyers are duty bound by the Maryland Lawyer’s Rules of Professional Conduct to zealously advocate for their clients, which includes introducing evidence that supports their clients’ positions and presenting argument in furtherance of their clients’ claims or defenses. See Preamble to MRPC (“as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). The specter of civil liability for words spoken or written in the course of a judicial proceeding will inhibit lawyers from abiding by their professional obligation to advocate zealously, imperiling the rights of their clients. See T. Leigh Anenson, “Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers,” 31 Pepp. L. Rev. 915, 922 (2004); see also Greenberg Traurig, LLP v. Frias Holding Co., 331 P. 3d 901, 903 (Nev. 2014) (explaining that “[t]he policy behind the [litigation] privilege, as it applies to attorneys participating in judicial proceedings, is to grant them as officers of the court the utmost freedom in their efforts to obtain justice for their clients.”) (internal quotation marks and citations omitted) (alteration in Greenberg).

Thus, the contentions at the trial were immunized from the assertion that they violated the non-disparagement clause.

The court also affirmed the trial court's denial of a motion to disqualify counsel as a necessary witness.

Judge Nazarian dissented

The ultimate question...is whether the City agreed, as part of settling its differences with OBG, not to disparage OBG in the Plant Upgrade Case. The outcome of that question depends in the first instance on what the parties intended the non-disparagement clause to cover. The circuit court erred in dismissing the case in the face of that looming factual dispute, and I would reverse and remand on that basis. From there, I would hold that the City could well have agreed to limit its litigation positions in the ongoing litigation, whether viewed as a positional or tactical decision or as a waiver of the litigation privilege, and direct the circuit court on remand to address OBG’s claims against that backdrop. And for those reasons, I respectfully dissent.

(Mike Frisch)


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Perhaps I'm missing something, but doesn't the quoted language only support the application of the litigation privilege to a tort claim? Is the court quietly expanding the scope of the privilege to contract claims, or did that already exist and just wasn't well-cited in the opinion?

Posted by: Noah | Apr 28, 2015 6:38:49 PM

In Tenn.we recognize that privilege as immunizing from suit for defamation suit everything said in preparation for litigation and in the pleadings, arguments, testimony so long as somehow "pertinent" to ANY issue in the case, credibility included. an advertisement accusing XYZ of selling defective screws, seeking plaintiffs in anticipation of litigation against XYZ, but viewed by XYZ as libelous, is protected from libel action by this immunity
it also shields the lying witness,
but the suborning lawyer is still subject to discipline under 3.1 for bring a frivolous lawsuit a handful of other Rules prohibiting presentation of a frivolous lawsuit, allegation, or promoting a lying witness.

the privilege is rooted in the constitutional guarantee of the right to petition the courts for redress of grievances and the policy of avoiding chill - there is an even more important duty and freedom of every witness and lawyer in a pending matter to advisse the court and jury of the whole truth. The more interesting question is whether the nondisparagement agreement muzzling the lawyer and his client violates a public policy that is more, or less, important than the public policy that promotes agreements that facilitate settlements and thus enforceable or not.

Posted by: Caldwell Hancock | Apr 29, 2015 10:01:18 AM

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