Historically, lawyers have been immune from civil liability for statements related to litigation which may injure or offend an opposing party during the litigation process. This protection is referred to as the “litigation privilege,” which originated in medieval English jurisprudence and continues to be recognized in the United States today. The rationale supporting the litigation privilege is that the integrity of the adversary system outweighs any monetary interest of a party injured by her adversary. Remedies other than lawsuits are available to parties who feel they have been damaged “by malicious statements or conduct during litigation.” For instance, misconduct in a judicial proceeding can be addressed through procedural rules or a court’s contempt power, as well as the disciplinary abilities of court systems and bar associations. Often used in response to defamation claims, the privilege has been noted to be “the backbone to an effective and smoothly operating judicial system.” Eradicating the privilege “would dissuade attorneys from zealously representing their clients and might reduce access to the courts.”
This Article will address the litigation privilege as it currently exists and examine several relevant contemporary cases. Cases in which the litigation privilege was successfully raised will be addressed, as well as one case in which a lawyer, rather than pursue the litigation privilege, chose to use a lack of duty defense. The latter case will be reviewed from the perspective of the litigation privilege, and this Article will propose that if the litigation privilege had been used, the outcome may have been different. While extolling that the use of the privilege is an important protection for lawyers, the reader will be reminded of its limits. The reader will also be reminded of the need for lawyers to be vigilant in the practice of law and mindful of concomitant duties and responsibilities.