by Collin R. Flake

“[S]peak clearly, if you speak at all; Carve every word before you let it fall [. . .].”

 – Oliver Wendell Holmes[i]

The recent increase in high-profile defamation lawsuits comes as no surprise against the backdrop of rising polarization in the United States.  A few cases illustrate the point.

In 2022, a jury awarded $965 million to families of victims of the Sandy Hook Elementary School shooting for defamatory statements made by Alex Jones, who claimed the families were actors in a government plot to impose stricter gun control measures.[ii]  Two months later, Oberlin College paid $25 million to the owners of Gibson’s Bakery, who sued for defamation after the college supported protests that damaged their business by branding them as racists for how they handled a shoplifting incident.[iii]  In early 2023, Fox News agreed to pay $787.5 million to settle a defamation lawsuit brought by Dominion Voting Systems regarding on-air claims that Dominion’s voting machines were programmed to rig the 2020 presidential election.[iv]  A few months later, a jury awarded nearly $3 million to a woman who was defamed by Donald Trump in connection with sexual assault allegations she made against him.[v]  And here in Idaho, an Ada County jury recently awarded $52.5 million to St. Luke’s Health System for defamatory statements made by Ammon Bundy and others about the hospital’s treatment of an infant.[vi]

Given the current milieu of divisiveness, the potential exposure to multimillion-dollar judgments, and the ethical obligation to zealously represent clients within the confines of procedural and professional rules, now is an opportune time to brush up on Idaho’s litigation privilege to defamation and other civil claims.

Adopting the Privilege

In true Gem State fashion, the Idaho Supreme Court adopted the litigation privilege over a century ago in a dispute involving a mining company.[vii] Felix Carpenter sued the Grimes Pass Placer Mining Company after it refused to pay him for work and materials furnished at a mill site on Grimes Creek. The company counterclaimed, alleging Carpenter had stolen lumber, piping, and gold nuggets. None too pleased, Carpenter filed a second lawsuit, this time alleging the company’s counterclaim was libelous. The district court dismissed Carpenter’s second action for failure to state a claim, and he appealed.

The Idaho Supreme Court affirmed. After tracing the early development of the litigation privilege to defamation cases in other states and the Ninth Circuit, the Court endorsed the majority view, holding that “the ends of justice and the public good can be best served by allowing litigants to freely plead any pertinent or material matter in a judicial proceeding to which they are parties [. . .].”[viii] Put another way, litigants are only liable for “defamatory matter which is neither pertinent nor material to the subject under inquiry.”[ix] The Court stressed, however, that litigants “cannot be allowed to avail themselves of the protection of the courts to assail and besmirch the reputation of their adversaries,” including by using pleadings to “assassinate character and belie virtue. The privilege must be exercised in good faith.”[x] The Court also held that properly pled allegations that are relevant to a cause of action or defense may be asserted “either with or without malice.”[xi]

Because the mining company’s allegations were pertinent and material to its counterclaim against Carpenter, and there was no indication of bad faith, Carpenter could not sue for libel.

Extending the Privilege Beyond Pleadings

Forty-two years later, the Idaho Supreme Court expanded the litigation privilege in a defamation case involving parties who were attorneys.[xii]  Harry Kessler moved to appear as amicus curiae in a case being handled by Charles Richeson, who did not welcome Kessler’s assistance and filed a brief opposing his motion.  After the client fired Richeson and hired Kessler as substitute counsel, Kessler wrote a letter to the district judge accusing Richeson of unethical conduct and asking for his opposition brief to be withdrawn.  Richeson then sued Kessler for defamation.

Affirming dismissal of the claim, the Court extended the litigation privilege by holding that “it is not absolutely essential that the [defamatory] language be spoken in open court or contained in a pleading, brief or affidavit.”[xiii] Defamatory matter is “absolutely privileged” so long as it is “published in the due course of a judicial proceeding” and has “some reasonable relation to the cause.”[xiv] Moreover, the Court clarified that the term “judicial proceeding is not restricted to trials,” but includes “every proceeding of a judicial nature [. . .].”[xv]  It also reinforced its holding in Carpenter that the privilege shields defamatory statements that are malicious and known to be false.[xvi]

The Court concluded that although Kessler’s letter was libelous per se, it was privileged because he submitted it in response to Richeson’s opposition brief. Thus, the defamatory statements were “in the course of, connected with, and related to the judicial proceeding.”[xvii]

Extending the Privilege Beyond Defamation Claims

In 2010, Idaho’s litigation privilege was expanded further to bar other civil claims besides defamation.[xviii] Reed Taylor filed suit against Michael McNichols and his law firm, who were representing a corporation that Taylor held shares in and had sued in a separate action. Taylor alleged McNichols and his firm aided and abetted the corporation in committing tortious acts, misappropriated corporate assets, violated Idaho consumer protection law, and committed professional negligence or breached fiduciary duties. The district court dismissed these claims, and Taylor appealed.

The Idaho Supreme Court comprehensively examined the common-law roots of the litigation privilege, which included nods to Judge Learned Hand and a case from 1585 in the Court of the King’s Bench. The Court then held that “where an attorney is sued by the current or former adversary of his client, as a result of actions or communications that the attorney has taken or made in the course of his representation of his client in the course of litigation, the action is presumed to be barred by the litigation privilege.”[xix] Still, the Court explained that there is an exception to the privilege when an attorney acts outside the scope of his employment or solely for his own interests.[xx] For example, attorneys who engage in malicious prosecution, fraud, or tortious interference out of a “personal desire to harm” are not protected.[xxi]

Because Taylor failed to plead any such facts about McNichols or his firm, the Court affirmed dismissal.  And even if Taylor had alleged such misconduct, his claims would have been premature considering the Court’s holding that a lawsuit may only be brought against attorneys after resolution of the underlying case in which the alleged misconduct occurred.[xxii]