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March 15, 2013     Post-Gazette
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March 15, 2013
 

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POST-GAZETTE, MARCH 15, 2013 Page 5. SPEAKING Should Lawyers Be Immune from Defamation Lawsuits When Speaking to Non-Party Witnesses Out of Court? This fascinating question was recently addressed by the Supreme Court of Florida in the case of DeIMonico v. Traynor, Case No. SC10- 1397, Fla. Sup. Ct. February 14, 2013. According to the Court, Florida's absolute priv- ilege is not quite as absolute as some might have thought, which means that attorneys will need to watch their words carefully when inter- viewing potential witnesses. The absolute privilege is commonly understood as an absolute defense to claims of defamation. By design, the absolute privilege is intended to protect freedom of speech to the greatest degree pos- sible where freedom of speech is uniquely impor- tant. Examples of situations in which the absolute privi- lege applies include legisla- tive debates, statements by government officials prop- erly within the scope of the official's duties and state- ments made during judicial proceedings, i.e., lawsuits. The logic behind the abso- lute privilege is simple: in- dividuals who participate in important conversations con- cerning public matters or in public forums should not worry about the risk of a defa- mation lawsuit when speak- ing. If such protections were not afforded in appropriate circumstances, lawyers, poli- ticians and government of- ficials who may, in their pro- fessional or official capa- cities, have something un- pleasant to say about another person could be bullied into silence. Deep-pocketed, pow  erful individuals or busi- nesses could stifle public criticism with a well-timed and aggressive lawsuit. In order to avoid stifling important public dialogue, the absolute privilege nor- mally p'rotects the speech of lawyers from a charge of defamation when such speech is made in the course of a judicial proceeding. With- out such latitude, a lawyer's ability to zealously represent his client could, as described above, be stifled. On the other hand, a lawyer who deliber- ately defames a person in court by maliciously making false statements about the person would be subject to sanction by the court, there- by providing an important incentive to discourage law- yers from deliberately mak- ing defamatory statements, even where the absolute privilege applies. However, the same incentive to avoid wrongful conduct does not exist when a lawyer is speaking outside of court, where no judge is present and no record is kept. Be- cause the same incentives do not exist outside of court, the Florida Supreme Court recently ruled, in certain circumstances, the absolute privilege will not protect a lawyer from a charge of defamation. According to the Florida Supreme Court, the scope of Florida's absolute privilege does not extend to allegedly defamatory statements made during "ex-parte [without the other side being present], out-of-court questioning of a potential, nonparty witness." This is in contrast to state- ments made in front of judges or in pleadings submitted to the court, in which a defama- tory statement can be struck or an offending attorney can be sanctioned. According to the Court, when attorneys speak to potential witnesses outside of court and without the other side being present, 00Summa 00storant 30 eet $treet, oston invites you to celebrate Sicilian Tradition 00east of Saint Joseph inner Join Us on Sunday, March 17, 2013 from noon to four o'clock in the afternoon. Enjoy the Delicacies of Our Heritage. Fennel and Orange Salad, Broccoli Rape and Beans, Calamari Salad, Assorted Frittatas, Stuffed Artichokes, Pasta Sarde, Pasta Mollica, Assorted Traditional Desserts, Fruit, Nuts and Coffee. $50.00 per person tax and tip included. By reservation only. Call 617-523-9503 - Seating is limited. Credit Cards accepted. they must be careful to avoid making defamatory state- ments or else risk the main- tenance of a defamation law- suit. The Court made clear that the absolute privilege does not "sweep so broadly" to protect any alleged defa- matory statement made by an attorney in the course of judicial proceedings. In Massachusetts, the law orn the absolute privilege does not appear as circum- s(cribed. Although there does not appear to be a case ad- dressing exactly the same sit- uation the Florida Supreme Court addressed, Massachu- setts appellate courts that have considered the abso- lute privilege defense have concluded that "the policy underlying the absolute priv- ilege ... immunizes the de- fendants from any civil liabil- ity based on the allegations [related to the allegedly defa- matory statements]." Robert L. Sullivan, D.D.S., P.C. v. Birmingham, ii Mass. App. Ct. 359, 362(1981). Although Massachusetts courts have noted that the absolute privi- lege "cannot be exploited as an opportunity to defame with immunity, because it is available only when the challenged remarks are rel- evant or pertinent to the ju- dicial proceedings," the ab- solute privilege in Massa- chusetts does sweep very broadly because "if [defama- tory statements or malicious] conduct were actionable, ac- tions would be brought against ]attorneys] in cases in which they had not spo- ken falsely and maliciously; it is not a desire to prevent actions from being brought in cases where they ought to be maintained, but the fear that if the rule were oth- erwise, numerous actions would be brought against persons who were acting honestly in the discharge of a duty." M. The Supreme Judicial Court has not had an oppor- tunity to set parameters on the issue of the absolute privilege in similar circum- stances. Richard J. Vita, Esq. is the principal of Vita Law Offices, P.C., a Boston law firm fo- cused on securities fraud, in- surance and consumer class action cases. He may be con- tacted at (617) 426-6566 or by email at Ov@vitalaw.com. Your Ad Could Go Here For information about advertising in the Post-Gazette. call 617-227-8929. Todd Andrew Family Awards Three Scholarships to Saint Raphael School The Andrew Family of Medford, Massachusetts provided three scholar- ships to students of Saint Raphael School in Med- ford who participated in an essay contest. The topic of the essay was "Name Your Hero." This is the 11 th year the Andrew Family has of- fered the scholarships. Father Kevin extends his thanks and gratitude to Todd Andrew Scholar- the Andrew Family for ship recipient Brianna their generosity and Campochiaro. kindness. The essay winners this year are: Scan Coughlin, Asiya Karim and Brianna Campochiaro. Featuring... 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