Defamatory Pre-Suit Notice Letter Cases In Texas

Several Texas cases have held the judicial proceeding privilege applies to letters written by lawyers to potential defendants prior to suit. The first was Russell v. Clark, 620 S.W.2d 865 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.), in which an attorney was sued for libel for a letter written to the plaintiff's investors. The Dallas Court of Civil Appeals, writing through Justice Stephens, adopted the Restatement's position and extended "absolute privilege to out of court communications made by attorneys preliminary to a judicial proceeding" if the communication has some relation to the proposed judicial proceeding. 620 S.W.2d at 868-69. the court opined that to trigger the absolute privilege, there must be a relationship between the correspondence and the proposed or existing judicial proceeding, which decision is made by considering the entire communication in context, resolving all doubts in favor of its relevancy. Id. at 870. The San Antonio Court of Appeals adopted the same rule of absolute privilege and held it protected a letter written by a lawyer for a client to a prospective defendant in a property dispute in Thomas v. Bracey, 940 S.W.2d 340 (Tex. App.--San Antonio 1997, no writ). The Eastland Court addressed the question of tortious interference based on a letter written by counsel to the operator of a gas well, claiming title to the gas produced. City of Brady v. Bennie, 735 S.W.2d 275, 279 (Tex. App.--Eastland 1987, no writ). The operator promptly shut down the well.