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3rd Circuit Upholds Bar to Litigation Over Litigation
Opinion backs lawyers' 'absolute privilege' in communication in course of lawsuit
The Legal Intelligencer
July 31, 2009
An arbitrator cannot sue a lawyer for wrongful use of civil proceedings, the 3rd U.S. Circuit Court of Appeals has ruled, even if the lawyer allegedly lodged false accusations in court papers to have the arbitrator disqualified, because lawyers enjoy an "absolute privilege" that immunizes them from liability over any communication made in the course of litigation.
The decision in Naythons v. Stradley Ronon Stevens & Young upholds the dismissal of a suit brought by Edwin E. Naythons, a former federal magistrate judge who now works as a private arbitrator.
In the suit, Naythons claimed that Stradley Ronon and one of its partners, Andre L. Dennis, lodged false charges of bias against Naythons after he issued his decision in an ugly battle over the control and finances of the Philadelphia-based Church of the Lord Jesus Christ of the Apostolic Faith.
The suit alleged that Dennis falsely accused Naythons of "backdating" the arbitration decision in order to dodge an ethical dilemma that arose when a death threat was made against Naythons.
Because Naythons is a former U.S. magistrate judge on the Eastern District of Pennsylvania bench, the case was specially assigned to an outside judge, U.S. District Judge Renee Marie Bumb of the District of New Jersey.
In a May 2008 decision that dismissed the case, Bumb declared that an arbitrator has no standing to pursue an abuse of process claim against litigants for seeking the arbitrator's disqualification -- even if the motion included false charges -- because the arbitrator is not a party to the litigation.
A ruling in Naythons' favor, Bumb said, could jeopardize the long-standing doctrine of judicial privilege, which protects judges and lawyers from being sued over the content of their speech in court proceedings.
"In this court's view, were plaintiff allowed to proceed in his claim for abuse of process, the effect would be a circumvention of the doctrine of judicial privilege and, ultimately, a chilling of zealous advocacy," Bumb wrote.
On appeal, Naythons' lawyers -- George Bochetto and David P. Heim of Bochetto & Lentz -- argued that Bumb erred in her analysis of the standing issue.
In their brief, Bochetto and Heim argued that Dennis "made a series of false and outrageous public allegations" about Naythons who, until then, had "enjoyed an impeccable reputation as a jurist, private arbitrator, and former federal and state prosecutor with a combined 50 years of experience."
The brief said Dennis had "filed voluminous pleadings making outrageous and false accusations" that Naythons had engaged in "misconduct, dishonesty, fraud and bias" in connection with the private arbitration.
Dennis also accused Naythons of conducting illegal, ex parte communications, the brief alleged, and of illegally taking control of the arbitration proceedings in violation of the parties' arbitration agreement.
"These blatantly false accusations were pled for the improper purpose of avoiding and delaying ... Naythons' arbitration awards, which found clear fraud, deception and theft by Dennis' client," the brief claimed.
