(This is for informational purposes and is not legal advice.)
Randy Brown (“Brown”) sued his former attorney, Elizabeth Bacon (“Bacon”), for malpractice. During that litigation, Bacon’s counsel, Thomas McGarry (“McGarry”), sent allegedly defamatory letters to Brown’s attorneys, including Ed Clinton (“Clinton”). Brown then sued McGarry and his firm for defamation. The trial court dismissed, holding that McGarry’s statements were protected by the litigation privilege. The appellate court affirmed. It explained that the attorney litigation privilege applies to publications (1) made in a judicial proceeding, (2) that have some connection or logical relation to the action, (3) that are made to achieve the objectives of the litigation, and (4) that involve only litigants or other participants authorized by law.
To the first element, Brown argued that the communications were not made in a judicial proceeding because Clinton no longer represented him when he received them. The appellate court disagreed, stating “the only requirement is that the communication pertain to proposed or pending litigations.” Id. at ¶30. Here, the communications in question “clearly pertained to an ongoing judicial proceeding.” Id. at ¶31. Brown lost on the second point as well because the letters in question “both relate[d] directly to the merits” of the malpractice litigation. Id. at ¶38. As for the third factor, the appellate court held that McGarry’s communication was made to achieve the objectives of the litigation by “resolv[ing] the Malpractice Litigation favorably for his client without a potentially expensive and time-consuming appeal” and “apparently sought to secure Clinton’s cooperation in confirming that plaintiff made statements in open court that were refuted” by Bacon. Id. at ¶32. As to the last element, Brown asserted that McGarry’s communications with Clinton went to an e-mail account Clinton allegedly shared with nine other people. However, a representative from Clinton’s e-mail provider confirmed that usernames are unique and that it does not permit the sharing of master accounts. “At most,” the Court concluded, “a third party might have gained unauthorized access to Clinton’s email account […] but, even if true, it would not defeat the litigation privilege.” Id. at ¶42.