-

Attorney Litigation Privilege

The Attorney Litigation Privilege in Action

Posted on Updated on

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.

Randy M. Brown v. Thomas P. McGarry & Hinshaw & Culbertson, LLP 2020 IL App (1st) 190427-U

(This is for informational purposes and is not legal advice.)

Doe v. Williams McCarthy LLP , 2017 IL App (2d) 160860

Posted on

In this lawsuit, the plaintiff sued the lawyers of a trust for various claims, including invasion of privacy, intentional infliction of emotional distress, and violation of the Illinois Mental health and Development Disabilities Confidentiality Act (the “Act”). The trial court dismissed all claims against defendants. The three above claims were addressed on appeal, where the second district affirmed in part and reversed in par. Specifically, the court affirmed the dismissal of invasion of privacy and intentional infliction of emotional distress claims against the attorney and his law firm, finding that the absolute-litigation privilege barred the claims. The court, however, reversed the dismissal of plaintiff’s claim under the Act, holding that the litigation privilege did not bar such a claim. In so doing, the court looked at the legislative history of the Act to determine that the absolute-litigation privilege does not provide a shield for a party charged with violation of the Act.

Doe v. Williams McCarthy LLP, 2017 IL App (2d) 160860

(This is for informational purposes and is not legal advice.)

Recent Illinois Case: O’Callaghan v. Satherlie

Posted on Updated on

The First District held that the absolute attorney litigation privilege extends beyond defamation claims, thus, a lawyer is absolutely immune for conduct pertaining to litigation and “pertaining” should be liberally construed.   In so holding, the court affirmed the dismissal of an intentional infliction of emotional distress claim filed by the party that was adverse to the attorney’s client in the underlying lawsuit.

2015 IL App (1st) 142152

(This is for informational purposes and is not legal advice.)

 

Kurczaba v. Pollock, 318 Ill. app. 3d 686, 742 N.E.2d 425 (1st Dist. 2000)

Posted on Updated on

Kurczaba v. Pollock, 318 Ill. app. 3d 686, 742 N.E.2d 425 (1st Dist. 2000)

Libco Corp. v. Adams, 100 Ill. App. 3d 314, 426 N.E.2d 1130 (1st Dist. 1981)

Posted on Updated on

Libco Corp. v. Adams, 100 Ill. App. 3d 314, 426 N.E.2d 1130 (1st Dist. 1981)

Garber-Pierre Food Products, Inc. v. Crooks, 78 Ill. App. 3d 356, 397 N.E.2d 211 (1st Dist. 1979)

Posted on Updated on

Garber-Pierre Food Products, Inc. v. Crooks, 78 Ill. App. 3d 356, 397 N.E.2d 211 (1st Dist. 1979)

Popp v. O’Neil, 313 Ill. App. 3d 638, 730 N.E.2d 506 (2d Dist. 2000)

Posted on Updated on

Popp v. O’Neil, 313 Ill. App. 3d 638, 730 N.E.2d 506 (2d Dist. 2000)

Weiler v. Stern, 67 Ill. App. 3d 179, 385 N.E.2d 762 (1st Dist. 1978)

Posted on Updated on

Weiler v. Stern, 67 Ill. App. 3d 179, 385 N.E.2d 762 (1st Dist. 1978)

Thompson v. Frank, 313 Ill. App. 3d 661, 730 N.E.2d 143 (3d Dist. 2000)

Posted on Updated on

Thompson v. Frank, 313 Ill. App. 3d 661, 730 N.E.2d 143 (3d Dist. 2000)