Absolute Privilege to Defamation Cases
Participants in judicial proceedings are protected by an "absolute privilege" to defame. See Green Acres, 141 Ariz. at 613, 688 P.2d at 621; Restatement (Second) of Torts 586.
Restatement (Second) of Torts 586 provides:
An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.
The privilege "protects judges, parties, lawyers, witnesses, and jurors," and the purpose of the privilege is to promote "'the fearless prosecution and defense of claims which lead to complete exposure of pertinent information for a tribunal's disposition.'" X, 310 Ariz. Adv. Rep. at 8, P 12 (quoting Green Acres, 141 Ariz. at 613, 688 P.2d at 621).
"The defense is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the defense." Green Acres, 141 Ariz. at 613, 688 P.2d at 621.
Attorneys' extra-judicial statements may also fall within the privilege. See X, 310 Ariz. Adv. Rep. at 8, P 12-13. However, the privilege is not a "license to defame," Hawkins v. Harris, 141 N.J. 207, 661 A.2d 284, 292 (N.J. 1995), but is subject to the requirement that "the defamatory publication must relate to, bear on or be connected with the proceeding."
Green Acres, 141 Ariz. at 613, 688 P.2d at 621. Also, the recipient of the extra-judicial communication must have "some relationship to the proposed or pending judicial proceeding for the occasion to be privileged." X, 310 Ariz. Adv. Rep. at 8, P 13 (quoting Green Acres, 141 Ariz. at 614, 688 P.2d at 622).
Because the "in furtherance of" language is the crux of our analysis, a preliminary discussion regarding the evolution of Bradley v. Hartford Acc. & Indem. Co., the case from which Green Acres and X derived the "in furtherance of" language, is warranted.
Bradley has come under much criticism in California and has essentially been overruled by the holding in Silberg v. Anderson, 50 Cal. 3d 205, 786 P.2d 365, 266 Cal. Rptr. 638 (Cal. 1990).
The Silberg court held that an attorney's statements regarding a psychologist's neutrality and independence were absolutely privileged. 786 P.2d at 374. In doing so, the court examined the privilege and the various public policy considerations supporting immunity. See id. at 368-72. As set forth in Silberg, a communication is privileged when:
(1) it is made in judicial or quasi-judicial proceedings;
(2) it is by litigants or other participants authorized by law;
(3) it is to achieve the objects of the litigation;
(4) it has some connection or logical relation to the action. See Id. at 369.
The court confronted the "in furtherance of" language in Bradley by explaining that:
The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e. that it not be extraneous to the action.
A good example of an application of the principle is found in the cases holding that a statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action.
Id. at 374. Thus, rather than hold the two concepts as separate requirements for privilege, the court fused the "in furtherance of" aspect into the "logical relation to" requirement for the first time.
California's post-Silberg decisions reflect that "California courts have given the [litigation] privilege an expansive reach." Rubin v. Green, 4 Cal. 4th 1187, 847 P.2d 1044, 1047 (Cal. 1993)(footnote citations omitted).
In a case factually similar to the case now before us, an intermediate appellate court in California held that statements made in a letter sent by a litigant to his attorney and two court-appointed appraisers were absolutely privileged. See Passman v. Torkan, 34 Cal. App. 4th 607, 40 Cal. Rptr. 2d 291, 294 (Cal. Ct. App. 1995).
In finding the privilege applicable, the court relied heavily on Silberg and determined that because the statements had "some relation" to the lawsuit, the court would decline to "test the outer limits of 'relevancy' to determine when a given communication may be deemed 'extraneous to the action.'" Id. at 295-96.
In Sacramento Brewing Co. v. Desmond, Miller & Desmond, the court held that the erroneous identification of the plaintiff as a debtor in the caption of a notice of motion filed in an underlying bankruptcy proceeding was protected by the litigation privilege. 75 Cal. App. 4th 1082, 89 Cal. Rptr. 2d 760, 767 (Cal. Ct. App. 1999).
The court reasoned that while the misnamed party was not "logically related" to the litigation, the subject matter of the erroneous communication was and thus the privilege was applicable. Id.
The court stated that "the communication furthered the objects of the litigation" and the fact that the document misnamed a debtor did not make the notice of motion "unconnected to, or palpably irrelevant to, the bankruptcy proceeding." Id. at 766.
Finally, the court in Moore v. Conliffe, 7 Cal. 4th 634, 871 P.2d 204, 209 (Cal. 1994), stated that "the purposes of the litigation privilege, as described in Silberg, strongly support application of the privilege to a witness who testifies in the course of a private, contractual arbitration proceeding."