Can You Sue for Defamatory Statements Made In Court by a Lawyer ?
"Any communication made or published during the course of a judicial proceeding is absolutely privileged; that is, no action will lie to recompense any injury which they may cause." James v. Brown, 637 S.W.2d 914, 916-17 (Tex. 1982).
This privilege has been held by several courts to include communications by counsel in which the alleged wrongs suffered by the client are detailed. See e.g. Russell v. Clark, 620 S.W.2d 865 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.); Thomas v. Bracey, 940 S.W.2d 340 (Tex. App.--San Antonio 1997, no writ); see also Helfand v. Coane, 12 S.W.3d 152 (Tex. App.--Houston [1st Dist.] 2000, no pet. h.).
The rationale is largely that of the absolute privilege that attaches to allegations in a petition filed in court, in that the demand letter is an attempt to alert the potential defendant of the grievance before suit is filed.
The Restatement states the rule to be:
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. RESTATEMENT (SECOND) OF TORTS 586 (1977).
Comment a of this section states:
The privilege stated in this Section is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.
Therefore the privilege is absolute. It protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity.
These matters are of importance only in determining the amenability of the attorney to the disciplinary power of the court of which he is an officer.
The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary to the proceeding.
The institution of a judicial proceeding includes all pleadings and affidavits necessary to set the judicial machinery in motion.
The conduct of the litigation includes the examination and cross-examination of witnesses, comments upon the evidence and arguments both oral and written upon the evidence, whether made to court or jury. Id. at 586, cmt. a.
Citing the rule stated in Reagan v. Guardian Life Ins. Co., that communications made in the course of a judicial proceedings are absolutely privileged, and that the privilege extends to communications made in contemplation of a judicial proceeding, citing James v. Brown, 637 S.W.2d 914 (Tex. 1982), the court held that the letter was written preliminary to a proposed judicial proceeding and was, therefore, absolutely privileged.