Cupid wasn’t the only one slinging arrows on Valentine’s Day. Justice Barbara Pariente authored the decision in Delmonico v. Traynor, which cut through the heart of the absolute immunity afforded to lawyers during litigation.

Justice Pariente described the issue as "whether Florida’s absolute privilege, which shields judges, counsel, parties, and witnesses from liability for alleged defamatory statements made in the course of a judicial proceeding, extends to statements made by an attorney during ex-parte, out-of-court questioning of a potential, nonparty witness while investigating matters connected to a pending lawsuit."

UNDERLYING LITIGATION

The underlying case arises from claims of defamation by DelMonico against business competitor Donovan Marine Inc. In that case, DelMonico claimed a Donovan sales representative had told a number of clients that he had supplied prostitutes to the owner of a company doing business with Donovan in an effort to lure away DelMonico’s clients. Donovan hired attorney Arthur Traynor to defend it against DelMonico’s claims.

Traynor acknowledged interviewing potential witnesses during the defamation action. What he said during those interviews is hotly disputed.

DelMonico obtained an affidavit from an ex-wife who was allegedly told by Traynor "that Mr. DelMonico was being prosecuted for prostitution, and that he was part of the team of people going after him really hard because Mr. DelMonico had done some embarrassing and illegal things."

According to the affidavit, "Traynor stated that if they found evidence that showed [the ex-wife] knew about Mr. DelMonico’s criminal activities and did not tell them … [she] could have a legal problem." Allegedly, similar statements were made to other people as well.

Traynor denied telling anyone DelMonico was being prosecuted for prostitution.

During the course of the defamation suit, DelMonico sued Traynor and his law firm, Akerman, Senterfitt & Eidson, for defamation and tortious interference with a business relationship relying upon the statements purportedly made during the course of the defamation suit. He claimed as part of his damages between seven and nine million dollars due to the loss of an exclusive distributorship.

The trial court granted Traynor and his law firm summary judgment which was affirmed by the Fourth District Court of Appeal. These rulings were based upon a finding that interviewing a witness in preparation for and connected to pending litigation is absolutely privileged.

Qualified privilege

After reviewing previous cases addressing absolute immunity, the court concluded that those cases, unlike DelMonico’s, dealt with situations in judicial settings where there was some level of safeguards. Without these safeguards, "the value of the absolute privilege as a mechanism for discovering truth decreases while the potential for damage to a person’s reputation increases," which heightened "concerns for abuse."

The court held that Florida’s absolute privilege was never intended to allow attorney’s to interview witnesses without being responsible for defamatory statements.

A multistep approach was adopted. First, the trial court must determine whether the statements are "connected with or related to the subject of inquiry in the underlying lawsuit." It is not a strict relevancy test. The statements need only have some relation to the proceeding.

If the trial court decides the statements are not connected, the attorney has no privilege at all. The plaintiff can proceed without having to prove express malice.

If the allegedly defamatory statements are found to be connected with or related to the subject of inquiry in the underlying lawsuit, a qualified privilege applies. The plaintiff must prove express malice. The court referred to the definition of express malice from the case of Fridovich v. Fridovich as "the defendant’s primary motive in making the statements was the intent to injure the reputation of the plaintiff."

The court applied this new standard to the facts of the case and found that Traynor’s alleged statements were relevant. DelMonico is now required to "establish by a preponderance of the evidence that the defamatory statements were false and uttered with common law express malice — i.e., that the defendant’s primary motive in making the statements was the intent to injure the reputation of the plaintiff."

This ruling increases an attorney’s exposure if he or she interviews potential witnesses during the course of litigation. Florida attorneys should consider taking risk reducing measures to prevent being sued under this newly created qualified immunity standard.

The most certain technique would involve taking a deposition to learn what a witness will say without first interviewing the witness. Another way of avoiding this risk can be achieved by using a non-law firm employee such as a private investigator to conduct the witness interviews. This would avoid any statements being attributed to the lawyer.

Lawyers are often accused of talking too much. In the case of conversations with witnesses outside of the judicial process, such talk can have significant and costly consequences unless proper precautions are taken.