Carve Every Word: Idaho’s Litigation Privilege to Defamation and Other Civil Claims by Collin R. Flake

January 9, 2024 by Carissa Carns

Flake Title Page Image — Photo used by permission from photographer, Jennifer Hall.

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]

Applying the Privilege “Broadly”

One of the Idaho Supreme Court’s most recent applications of the litigation privilege came in a defamation case between co-owners of two potato processing businesses.[xxiii] One co-owner, the J.R. Simplot Company, filed suit in a Washington federal court against the other co-owner, Frank Tiegs, who operated Dickinson Frozen Foods. The lawsuit involved dissolution of a business relationship between Simplot and Tiegs, which allegedly was caused by Tiegs’s poor business operations. After filing the suit, Simplot’s attorneys sent a copy of the complaint to a lender of one of the co-owned businesses. Dickinson then sued Simplot and its attorneys for defamation.

The Court put it succinctly: The litigation privilege applies when “(1) ‘the defamatory statement was made in the course of a proceeding’ and (2) it ‘had a reasonable relation to the cause of action of that proceeding [. . .].’”[xxiv] If those two requirements are met, a statement cannot be used as the basis for a defamation claim.

Notably, the Court peppered the word “broadly” throughout its analysis to emphasize the “low bar to invoking litigation privilege,” and the “breadth with which the privilege applies.”[xxv] Citing supreme court decisions from several states, and the Second Restatement of Torts, the Court explained that the test for whether a defamatory statement is reasonably related to the cause of action is not “legal relevancy” from an “evidentiary point of view.”[xxvi] Instead, reasonable relation is “interpreted liberally” to mean “a general frame of reference and relationship to the subject matter of the action.”[xxvii] And “any doubts about the relevance of the [defamatory] statement are resolved in favor of relevancy and pertinency.”[xxviii]

But the broadly applied privilege still has limits. It does not encompass “matters having no materiality or pertinency to the question involved in the suit,” nor does it protect conduct or statements that have “no connection whatever with the litigation.”[xxix]

Simplot’s allegations and the actions of its attorneys did not fit that description. Affirming dismissal, the Court found that litigation privilege barred Dickinson’s defamation claim because Simplot’s allegations about Tiegs’s business practices were reasonably related to the dissolution of the parties’ business relationship.[xxx] Further, since Simplot’s attorneys sent the complaint to a lender of one of the businesses at issue, their conduct was reasonably related to the litigation and within the scope of their employment.[xxxi]

Acknowledging Alternative “Safeguards”

The Idaho Supreme Court’s expansive formulation of the litigation privilege means there is a “risk that a wronged party may be denied civil relief under the law.”[xxxii] Yet the Court has made clear that “a lack of civil redress does not mean immunity from consequence and punishment.”[xxxiii] Procedural and professional rules, as well as the court’s inherent authority, “provide adequate safeguards against abusive and frivolous litigation tactics” that would otherwise form the basis of a defamation claim.[xxxiv]

Under the Idaho Rules of Civil Procedure, attorneys must certify that their pleadings and motions are not being submitted for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase costs).[xxxv] They are also required to certify that each legal contention is warranted by existing law, and all factual contentions have or will likely have evidentiary support.[xxxvi] Courts “must” sanction attorneys or their firms for violating these rules.[xxxvii]

The Idaho Rules of Professional Conduct also limit what an attorney can say in various ways. For example, Rule 3.3 and Rule 4.1 prohibit knowingly making a false statement of material fact or law to a tribunal or third person.[xxxviii] Rule 3.6 forbids making extrajudicial statements that an attorney knows or reasonably should know will be distributed publicly and are substantially likely to materially prejudice a proceeding.[xxxix] And Rule 4.4 prohibits doing things that have no substantial purpose other than to embarrass, delay, or cause burden.[xl] Failure to comply with these obligations can result in disciplinary proceedings before the Idaho State Bar.[xli]

In addition to these rule-based constraints, attorneys are subject to the “inherent authority” each court must “assess sanctions for bad faith conduct against all parties appearing before it.”[xlii] This includes, among other things, striking pleadings when litigants refuse to comply with court orders based on an invalid assertion of privilege.[xliii]

Carving Every Word

Attorneys are supposed to zealously represent their clients – in fact, they have an ethical obligation to do so.[xliv] But if the objective is to maximize effective advocacy while minimizing the risk of ending up like Alex Jones, Oberlin College, Fox News, Donald Trump, or Ammon Bundy, attorneys should follow the advice of Oliver Wendell Holmes to “speak clearly” and “carve every word.”

While drafting pleadings or briefs (or a letter to a judge, for that matter), attorneys should take care to ensure the contents reasonably relate to the subject matter of the case and promote the client’s interests. Similar caution is warranted when deciding whether to send materials to a non-party or make a public statement, especially if it could be construed as “assail[ing] and besmirch[ing] the reputation of [an] adversary.”[xlv]

Attorneys also should bear in mind that even if statements and conduct are protected under litigation privilege, they may still run afoul of procedural or professional rules. Making a defamatory statement to the press or posting it online – even one that relates to the case and ultimately benefits the client – can violate ethical obligations if it is substantially likely to cause material prejudice, includes a false statement of material fact or law, or lacks evidentiary support. Likewise, actions that may be privileged could still give rise to a bar complaint or sanctions if they have no substantial purpose other than to embarrass or burden the other side.

In light of the contours of Idaho’s litigation privilege and attorneys’ ethical obligations, it seems wise to set expectations with clients early on, especially in emotionally charged litigation. Clients and attorneys alike should remember there are limits to what they can prudently let fall.

[i] Urania: A Rhymed Lesson 22 (William D. Ticknor & Co., 3d ed. 1846).

[ii] Dave Collins, Alex Jones Ordered to Pay $965 Million for Sandy Hook Lies, Associated Press (Oct. 12, 2022, 6:36 PM), https://apnews.com/article/shootings-school-connecticut-conspiracy-alex-jones-3f579380515fdd6eb59f5bf0e3e1c08f.

[iii] Oberlin College Finishes Paying $25M Judgment in Libel Suit, Associated Press (Dec. 16, 2022, 2:31 PM), https://apnews.com/article/business-education-ohio-lawsuits-racism-0408eb2557dcc16749cf2115bcef3a2d.

[iv] Jennifer Peltz & Nicholas Riccardi, How Election Lies, Libel Law Were Key to Fox Defamation Suit, Associated Press (Apr. 18, 2023, 3:43 PM), https://apnews.com/article/fox-news-dominion-lawsuit-trial-explainer-trump-fbd401a951905879d837a8860b3bec5e.

[v] Larry Neumeister, Jennifer Peltz & Michael R. Sisak, Jury Finds Trump Liable for Sexual Abuse, Awards Accuser $5M, Associated Press (May 9, 2023, 6:00 PM), https://apnews.com/article/trump-rape-carroll-trial-fe68259a4b98bb3947d42af9ec83d7db.

[vi] Andrew Selsky, Far-Right Activist Ammon Bundy Loses Idaho Hospital Defamation Case, Must Pay Millions, Associated Press (July 27, 2023, 7:10 AM), https://apnews.com/article/ammon-bundy-idaho-hospital-defamation-verdict-extremism-56af8016c6ae1c47861e9e2861ed99da.

[vii] Carpenter v. Grimes Pass Placer Mining Co., 19 Idaho 384, 114 P. 42 (1911).

[viii] Id. at 387, 114 P. at 45.

[ix] Id.

[x] Id.

[xi] Id. at 388, 114 P. at 46.

[xii] Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953).

[xiii] Id. at 551, 255 P.2d at 709.

[xiv] Id. at 551–52, 255 P.2d at 709.

[xv] Id. at 551, 255 P.2d at 709 (citation omitted).

[xvi] Id. at 551–52, 255 P.2d at 709.

[xvii] Id. at 551, 255 P.2d at 708–09.

[xviii] Taylor v. McNichols, 149 Idaho 826, 243 P.3d 642 (2010).

[xix] Id. at 836–41, 243 P.3d at 652–57.

[xx] Id. at 841, 243 P.3d at 657; see, e.g., Berkshire Invs., LLC v. Taylor, 153 Idaho 73, 84 n.10, 278 P.3d 943, 954 (2012) (litigation privilege did not apply to defamatory statements made by attorney acting in individual capacity as litigant).

[xxi] Taylor, 149 Idaho at 840–41, 243 P.3d at 656–57.

[xxii] Id. at 843, 243 P.3d at 659.

[xxiii] Dickinson Frozen Foods, Inc. v. J.R. Simplot Co., 164 Idaho 669, 434 P.3d 1275 (2019).

[xxiv] Id. at 678, 434 P.3d at 1284 (quoting Weitz v. Green, 148 Idaho 851, 862, 230 P.3d 743, 754 (2010)).

[xxv] Id. at 678–79, 434 P.3d at 1284–85.

[xxvi] Id. at 679, 434 P.3d at 1285 (citations omitted).

[xxvii] Id. (citations omitted).

[xxviii] Id.

[xxix] Id. at 679–80, 434 P.3d at 1285–86 (citations omitted).

[xxx] Id. at 680–82, 434 P.3d at 1286–88.

[xxxi] Id.

[xxxii] Taylor, 149 Idaho at 841–42, 243 P.3d at 657–58.

[xxxiii] Id. at 842, 243 P.3d at 658.

[xxxiv] Id. (citation omitted).

[xxxv] Idaho R. Civ. P. 11(b)(1).

[xxxvi] Idaho R. Civ. P. 11(b)(2) & (3).

[xxxvii] Idaho R. Civ. P. 11(c)(1).

[xxxviii] Idaho R. Prof. C. 3.3 & 4.1.

[xxxix] Idaho R. Prof. C. 3.6.

[xl] Idaho R. Prof. C. 4.4.

[xli] Idaho R. Prof. C. at Preamble ¶ 19.

[xlii] In re SRBA Case No. 39576, 128 Idaho 246, 256, 912 P.2d 614, 624 (1995).

[xliii] McPherson v. McPherson, 112 Idaho 402, 406–07, 732 P.2d 371, 375–76 (Ct. App. 1987).

[xliv] See Idaho R. Prof. C. at Preamble ¶ 2 (“As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”); see also Idaho R. Prof. C. 3.3 cmt. 2 (“A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force.”).

[xlv] Carpenter, 19 Idaho at 387, 114 P. at 45.