Academic journal article The University of Memphis Law Review

Torts-Simpson Strong-Tie V. Stewart: Balancing the Protection of Individuals with the Freedom of the Judicial Process in Tennessee Attorney Solicitations

Academic journal article The University of Memphis Law Review

Torts-Simpson Strong-Tie V. Stewart: Balancing the Protection of Individuals with the Freedom of the Judicial Process in Tennessee Attorney Solicitations

Article excerpt

Tennessee, along with the majority of jurisdictions, has long recognized the absolute litigation privilege in defamation cas- es as a crucial tool in the pursuit of justice.1 To all participants of the judicial process, the absolute litigation privilege provides com- plete immunity from tort liability attributable to statements made in connection with litigation.2 Recently, courts have concentrated less on the question of whether to adopt die privilege and more on the definition of its boundaries.3 In 2007, me Tennessee Supreme Court ("Supreme Court"), in a case of first impression, set out to determine "whether the privilege encompasses an attorney's soli- citous statements made prior to the filing of a lawsuit."4 In reach- ing its decision, the Supreme Court weighed the public interest to freely institute an action against die risk of attorneys portraying individuals in a defamatory light.5 The Supreme Court held, the absolute litigation privilege applies to attorney solicitations pub- lished prior to the start of litigation if certain elements are satisfied; furthermore, the privilege applies even though some individuals who are unconnected with the proposed proceedings may receive the communication. Simpson Strong-Tie, Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 27 (Tenn. 2007). This new rule best serves the public good for three reasons. First, it further secures the utmost freedom for attorneys in their efforts to seek justice for their clients. Second, the rule encourages attorneys to speak liberally and openly, undeterred by the fear of an action for defamation. Third, the rule avoids a chilling effect on meritorious lawsuits in which attorneys have no feasible way of limiting their communications to those that may be interested in the proposed litigation. In the end, the rule will still protect citizens from the malice of individuals because unnecessary defamatory publications that are unconnected with the proposed proceedings will not be protected.

As an introductory matter, the privileges that one may raise as defenses in a defamation suit are either absolute or qualified.6 While defamatory statements made with malice or ill-will defeat the qualified privilege,7 an absolute privilege gives the publisher of the defamatory communication complete immunity.8 The Restatement (Second) of Torts section 586 asserts the general rule that if the defamatory materials have some relationship to the proceeding, the absolute litigation privilege gives an attorney the absolute privilege to publish defamatory statements in communications prior to or during the course of a judicial proceeding for which he participates as counsel.9 In addition, the class of absolutely privileged communications is constricted, generally limited to "legislative and judicial proceedings and other acts of the state."10

The absolute protection afforded to defamatory statements made in the course of a judicial proceeding has an extensive history originating in the common law of England.11 The absolute litigation privilege has since achieved extensive recognition in U.S. courts, including Tennessee.12 Ui the 1591 case Buckley v. Wood, one of the first English cases to apply the privilege, a plaintiff brought a defamation action after the defendant charged the plaintiff in a court document of being "a maintainer of pirates and murderers."13 The English court found for the defendant.14 It held that no defamation action could result from an accusation contained in a court document, even if the information in the document happens to be false, because the defamatory publication occurred "in [the] course of justice."15

Early English decisions, such as Buckley, "made the materiality or relevancy of the communication necessary to confer an absolute privileged character on the communication."16 Conversely, the present rule in England asserts that any statement enclosed in a pleading is absolutely privileged regardless of its pertinence to the issues. …

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