Speak Freely And Breathe Easy: The Absolute Privilege In Judicial Proceedings

From time to time in litigation, opposing sides exchange harsh and even arguably slanderous words. The good news is that in some circumstances, those exchanges are privileged and protected from defamation claims.

In Richmond v. McHale, 2012 Pa. Super. LEXIS 2 (January 4, 2012), the Pennsylvania Superior Court ruled that allegedly defamatory statements made during a discovery meeting were absolutely protected by judicial privilege. The court affirmed the trial court order sustaining the appellee's preliminary objections and dismissing the appellant's complaint.

Kenneth Richmond, Esq., was the attorney for plaintiffs in an underlying civil case involving the alleged sexual abuse of a minor. The defendant in the underlying action was represented by Joseph J. McHale, Esq. McHale and three other attorneys met at Richmond's office to attempt to resolve a potential discovery dispute relating to plaintiff's request for a physical examination of the defendant. McHale would not agree to the exam and accused Richmond of using the proposed examination "to extort money from his clients."

Richmond filed a complaint alleging that McHale made the comments to induce fear of criminal prosecution against Richmond. Richmond further alleged that the comments adversely affected his ability to practice law and damaged his professional reputation. McHale filed preliminary objections, arguing that the comments were not defamatory; and in any event, the comments were made in the course of litigation, and therefore, were absolutely privileged.

The trial court sustained the preliminary objections and dismissed the complaint, reasoning that, because the comments were made during a discovery conference, they were privileged. In addition, the comments were protected because they were made in connection with McHale's representation of his client in a judicial proceeding. On appeal, the Pennsylvania Superior Court agreed.

Richmond v. McHale confirms that statements made by attorneys during judicial proceedings are protected. But what about parties to a litigation — are they protected under the privilege as well?

The answer is yes in Pennsylvania. Under the law of the Commonwealth, "statements made by judges, attorneys, witnesses and parties in the court of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation." See Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa. Super. 1991) (emphasis...