The litigation privilege

In the Commonwealth of Massachusetts, the litigation privilege provides that statements by a party, witness, or counsel during a judicial proceeding are absolutely privileged, so long as the communications are related to that proceeding.

Consequently, there can be no civil liability based on communications matters related to the proceeding. Like most other jurisdictions, Massachusetts has adopted the formulation of the litigation privilege set forth in the Restatement (Second) of Torts, which provides as follows:

“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).

The origins of the litigation privilege are found in English common law, with the first reported decision issued in 1606 – Brook v. Montague, 79. Eng. Rep. 77, 77 (K.B. 1696) – in which a lawsuit brought against an attorney was dismissed based on the privilege. In Brook, an attorney had been accused of slandering his client’s adversary during a previous trial by asserting that the adversary was a convicted felon. The attorney was deemed to be immune from suit with the court reasoning that “[a] counsellor in law retained hath a privilege to enforce any thing which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false.” Id. Courts in the United States adopted this doctrine in the Nineteenth Century, and over time, the scope of the doctrine has expanded.

Currently, under Massachusetts law, an attorney’s communications are absolutely privileged “[w]here such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation.” Sriberg v. Raymond, 370 Mass. 105, 109 (1976) (adopting formulation of litigation privilege described in Restatement). The privilege applies regardless of malice, bad faith, or any nefarious motives on the part of the lawyer so long as the conduct complained of has some relation to the litigation.” Id.  Indeed, the application of the privilege extends beyond statements that are made in the court room itself to “communications preliminary to a proposed judicial proceeding.” Id. at 108.

For instance, in Sriberg, the Supreme Judicial Court (“SJC”) of Massachusetts held that an attorney was immune from liability for allegedly defamatory statements contained in a letter that the attorney mailed to the plaintiff, in which the attorney threatened to pursue litigation. In Sriberg, even though formal proceedings had yet to commence, the SJC determined that the statements were made by an attorney in his function as an attorney, and therefore, relying on the Restatement, deemed the statements to be subject to the litigation privilege. Id. at 109. The SJC ruled further that under the formulation set forth in the Restatement, the litigation privilege protects defamatory statements made during judicial proceedings “even if uttered maliciously or in bad faith.” Previously, in Mezullo v. Maletz, 331 Mass. 233, 236 (1954), the SJC held that “the privilege would afford small comfort . . . if there was a possibility that [the declarant] would be subjected in every instance to an inquiry as to his [or her] motives.” Moreover, in Correllas v. Viveiros, 410 Mass. 314, 320 (1991), the SJC reasoned that conditioning the application of the litigation privilege on the declarant’s honest intentions would require him or her “to prove the absence of malice of recklessness in court.” While the litigation privilege has developed to protect lawyers from defamation suits, in many other jurisdictions the scope of the privileged has broadened to bar additional claims, because “[a] privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.” Correllas, 410 Mass. at 324.

Over time, the scope of the privilege likewise has expanded under Massachusetts law. For instance, the privilege has been held to apply not only to defamation claims brought against attorney, but to civil liability generally, See Bartle v. Berry, 80 Mass. App. Ct. 372, 378 (2008), including to claims for intentional infliction of emotional distress, see Correllas, supra; abuse of process and negligence, see Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App. Ct. 359, 360, 367-368 (1981) (Sullivan); invasion of privacy, violations of G. L. c. 93A, and violations of the Civil Rights Act, G. L. c. 12, §§ 11H-11J, see Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137, 140-141 (1996). As the SJC reasoned in Sriberg, the purpose underlying the litigation privilege is to promote zealous advocacy by allowing attorneys complete “freedom of expression and candor in communications in their efforts to secure justice for their clients.” Sriberg, 370 Mass. at 108.

Recently, Bassichis v. Flores, 490 Mass. 143 (2022), the SJC considered the application of the litigation privilege in a divorce proceeding involving William and Kimberly von Thaden. During their marriage, Mr. von Thaden owned and operated a successful construction business, which was his family’s primary income source. However, by 2014, the business was no longer profitable, and by 2017, the business owed thousands of dollars in business loans and other debts. Shortly thereafter, the von Thadens contemplated divorce, and Mr. von Thaden promised his wife that she would receive all of the marital property. She then hired Attorney Flores to represent her in the divorce. At trial, Attorney Flores argued that his client was entitled to all property from the marital estate due to various actions by Mr. von Thaden which dissipated assets from the marital estate. Appearing pro se, Mr. von Thaden failed to contest Attorney Flores’ representations, and at the conclusion of the trial, judgment entered in favor of Mrs. von Thaden resulting in transfer all the marital assets to her. After the judgment for dissolution finalized, Mr. von Thaden filed a petition for bankruptcy, naming the plaintiffs as creditors. The bankruptcy case was closed in May 2019 without any distribution to Mr. von Thaden’s creditors.

In July 2020, the creditors commenced an action against Attorney Flores based on his representation of Mrs. von Thaden in the underlying divorce. The plaintiffs alleged that Attorney Flores participated in a fraudulent transfer, civil conspiracy, and violations of the Uniform Fraudulent Transfer Act. In response to the complaint, Attorney Flores moved to dismiss arguing that the plaintiffs’ claims were barred by the litigation privilege. In their opposition, the plaintiffs maintained that the litigation privilege protected only communications made in the course of litigation and did not protect Attorney Flores’ conduct in carrying out a scheme to defraud the plaintiff creditors by transferring all marital assets to the wife through collusive divorce proceedings. According to plaintiffs, their claims were based on Attorney Flores’ “conduct in effectuating the unlawful transfer of [the husband’s] assets to his wife.”  The trial court granted Attorney Flores’ motion to dismiss. The SJC granted review.

On review, the SJC was asked to consider whether the litigation privilege applied to the alleged misrepresentations made by Attorney Flores, as well as his conduct in representing Mrs. von Thaden. The Court unanimously held that the privilege did indeed apply reasoning that the term “statements” covers an attorney’s conduct in addition to written or verbal communications. Considering the longstanding history of the privilege, the SJC noted that the purpose behind the litigation privilege is to encourage zealous advocacy for clients, without the fear of civil liability looming over an attorney’s representation of his or her client. Specifically finding that the litigation privilege applied to conduct as well as written statements, the Court held that the “acts of preparing and advancing a litigation strategy are as integral to the duties of a lawyer as is advocating in the courtroom,” and that conduct falls squarely within the scope of the litigation privilege. Noting that this was a broad interpretation of the privilege, the Court reiterated their acceptance of “this broad protection as necessary to encourage zealous advocacy.”

The SJC’s reasoning followed that, overall, it is in the public interest and interests of justice, to allow an attorney full freedom of speech as he or she advocates to protect the rights of the client, and “this freedom of discussion ought not to be impaired by numerous and refined distinctions.” Hoar v. Wood, 3 Met. 193, 197-198 (1841). Referring to various commentators, the SJC expressed that an essential ingredient of zealous representation “is the freedom to err in favor of the client.” Mallen & Roberts, The Liability of a Litigation Attorney to a Party Opponent, 14 Willamette L.J. 387, 390 (1978). Stated another way, according to the SJC, implicit in the attorney’s duty to zealously represent her client is a recognition that there may be occasions when, in the heat of advocacy, “statements by counsel may be made that are injudicious.” State v. Boyd, 166 W. Va. 690, 697 (1981).

While the SJC held that the statements of Attorney Flores fell within the litigation privilege, the Court also noted that attorneys are not completely immune from consequences for morally and ethically questionable actions related to litigation. Thus, a broad litigation privilege does not shield attorneys from their own wrongdoing. As the SJC noted, “there are remedies other than a cause of action for damages that can be imposed” to discourage and sanction attorney misconduct. See Simms v. Seaman, 308 Conn. 523, 536 (2013). Additionally, a trial judge has the inherent authority to sanction an attorney for his or her misconduct in the court room, see Wong v. Luu, 472 Mass. 208, 219 (2015), or to hold the attorney in contempt of court, see Sussman v. Commonwealth, 374 Mass. 692, 695 (1978). Moreover, the SJC noted that the Board of Bar Overseers may institute disciplinary proceedings against an attorney for a violation of the rules of professional responsibility. See S.J.C. Rule 4:01. Thus, while the result may be harsh in some instances and a party to a lawsuit may possibly be harmed without legal recourse, the SJC observed that there are sufficient protections “from gross abuse of the privilege” through a judge’s inherent powers and the specter of disciplinary proceedings.

Put simply, in Bassichis the SJC found no merit to the plaintiffs’ claims that Attorney Flores made fraudulent misrepresentations during the divorce proceedings, or that he drafted the divorce agreement to avoid Mr. von Thaden’s creditors. Indeed, even if this had been the case, the SJC held that such actions, concerning as they may be, are protected from liability under the litigation privilege. Importantly, the SJC noted that the plaintiffs were able to secure attachments totaling $103,281.26 to several parcels of real estate owned by the husband and wife, as well as by the husband individually, and as a result, were not without a remedy.

The takeaway from the SJC’s ruling in Bassichis is that the Court seemingly has expanded the protection of the litigation privilege in Massachusetts to cover conduct as well as communications made by an attorney during the course of representation that are related to the representation. Furthermore, Bassichis suggests that the attorney litigation privilege will be applied broadly giving attorneys great latitude in their litigation conduct and arguments during the course of representing clients.

Damon M. Seligson is a member of Sheehan Phinney’s Business Litigation Group, where his practice focuses on commercial litigation and real estate matters