Litigation Privilege Blocks Claims of Defamation and Broken Non–disparagement Agreement

A Florida District Court of Appeals ruled that the trial court should have dismissed petitioner James’ former law partner Leigh and James’ former law firm’s complaint alleging that James defamed Leigh and James breached a non-disparagement agreement with the Firm. James v Leigh, Case No 1D14-799, 145 So. 3d 1006 (1st DCA 2014) (Available Here).   James had made statements in a divorce proceeding alleging that his partner, Leigh, and the law firm engaged in legal misconduct. James made the allegedly defamatory statements in a pleading wherein James had sought to set aside a marital settlement agreement with his former wife.  James indicated that he had signed the settlement agreement on the belief that Leigh would be disciplined for misconduct. If the Florida Bar had found Leigh engaged in misconduct, James could maintain his income and assume control of the law firm. Leigh was never disciplined by the Florida Bar.  

Leigh and the law firm sued James for defamation and breach of non-disparagement agreement based upon allegedly defamatory comments made in James’ divorce proceeding. James filed a motion to dismiss alleging that his statements were protected under the absolute litigation privilege. The trial court had denied James’ motion to dismiss and this appeal followed.

The Appeals Court opined that Florida has a long history establishing that alleged defamatory statements made in the course of judicial proceedings are absolutely privileged and no cause of action for damages will lie, regardless of how false or malicious the statements may be as long as the statements are relevant to the subject of inquiry in the lawsuit. Levin, Middlebrooks, Mabia, Thomas, Mayes and Mitchell, P.A. v. U.S. Fire Ins., 639 So. 2d 606, 608 (Fla. 10994). Florida courts have not imposed a strict relevancy test in determining whether a statement made during the course of a judicial proceeding is entitled to immunity so long as the statement has some relation to the proceeding.  The Appeals Court cited examples wherein a postal employee collaborated in the death of a young black male and was an accessory to murder and made statements in a union grievance proceeding regarding racial tensions in the workplace. Further, statements made by counsel in his motion to withdraw are privileged.

The Appeals Court said that if a trial court denies motion to dismiss on immunity grounds, review of the non-final order is proper because absolute immunity protects the party having to defend the lawsuit

Regarding the non-disparagement agreement, the Florida Supreme Court has held that an individual cannot wave a right designed to protect both the individual and the public. Champs v. DeMayo, 972 So. 2d, 850, 860 (Fla. 2007).  The non-disparagement agreement could not be construed as a waiver of the privilege.

The appellate court reversed the trial court’s decision refusing to dismiss James’ motion to dismiss.

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