Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints

When attorneys seek to gain an advantage by disclosing or threatening to disclose embarrassing secrets, illegal activity, deny facts known to be true, or otherwise cause fear to the opposing party, they are more frequently being sued for defamation, bad faith, intentional interference with contractual or beneficial relations, intentional infliction of emotional distress, fraud, or the like.Sometimes these types of activities are absolutely privileged and sometimes they are only entitled to partial immunity. Much depends on when and where the statements are made and how state courts define “litigation.”Regardless of civil liability, such conduct can lead to ethics complaints. Model Ruel 4.1 attempts to set some boundaries, but it offers no bright line rule. Landry’s Inc., et al. v. Animal Legal Defense Fund, et al (Tex., No. 19-0036, June 15, 2021), and Dorfman v. Smith, 342 Conn 582 (2022), are just two illustrations of the risks lawyers face if they utilize these tactics.

Listen as our experienced panel of litigators assists counsel in understanding the judicial proceedings privilege and attorney immunity and the limits of MR 4.1.

Outline

Statutory authority and procedural requirements
Strategies for plaintiffs
1. Avoiding federal question
2. Avoiding diversity, pre- and post-filing
3. Federal question issues as counterclaims; Home Depot v. Jackson
4. Amending the complaint
Strategies for defendants
1. Contractual forum selection
2. Snap removal
3. Finding federal question jurisdiction
4. Preemption
5. Federal officer removal
6. Federally chartered defendants
Consequences of removal
1. Avoiding remand
2. Effect of removal on pleadings and motion practice

On Demand CLE Webinar

A Strafford production specially selected for HB audiences.

Speakers

Jeffrey Lieser
Co-Founder
Lieser Skaff Alexander

Nicole Reid, Esq.
Managing Attorney
Reid Legal Solutions

Timothy Simeone
Partner
HWG

James Smith
Shareholder
Crain Caton & James

Benefits

The panel will discuss these and other key issues:

Does Model Rule 4.1 apply when an attorney is a party to litigation?
To what degree are intentionality and good faith factors when considering questions of litigation privilege or attorney immunity?
Do the privilege and immunity apply to transactions or only to judicial proceedings?
What law applies?