Pottinger v. Botts, 348 S.W.3d 599 (Ky., 2011)
In these combined cases, we are asked to determine if the absolute privilege afforded statements made in the course of a judicial proceeding applies to statements contained in an attorney disciplinary complaint.
GMAC Mortgage Corporation (hereinafter “GMAC”), through its attorney, Morgan & Pottinger, Attorneys, P.S.C. (hereinafter “Morgan & Pottinger”), filed a disciplinary complaint against Appellee, Noel Mark Botts (hereinafter “Botts”).
Subsequently, Botts filed suit against GMAC and Morgan & Pottinger in the Mercer Circuit Court, requesting relief from the pecuniary and professional harm he has allegedly suffered as a result of the disciplinary complaint. He alleged wrongful use of civil proceedings, defamation and slander, abuse of process, fraud, and outrageous conduct. Appellants filed numerous motions to dismiss based on claims of immunity, all of which were denied.
Because it is determinative of the matter, we first address Appellants’ claims that they are entitled to absolute immunity from liability based on the judicial statements privilege. “The prevailing rule and the one recognized in this jurisdiction is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice.” Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281, 283 (1942). See also Smith v. Hodges, 199 S.W.3d 185, 189 (Ky.App.2005) (“The absolute immunity afforded to defamatory statements made in the course of a judicial proceeding has a long history in this Commonwealth….”); Morgan v. Booth, 76 Ky. 480 (1877).
[348 S.W.3d 602]
A communication must fulfill two requirements in order to fall within the ambit of the judicial statements privilege. First, the communication must have been made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding.” General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir.1990) (citing Restatement (Second) of Torts § 587 (1977)). Second, the communication must be material, pertinent, and relevant to the judicial proceeding. Smith, 199 S.W.3d at 193 (citing Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753, 754 (1925)).
Attorney discipline proceedings which commence with the filing of a bar complaint, as occurred in this case, are judicial proceedings. This Court is granted original jurisdiction in the discipline of attorneys and regulation of the profession. Ky. Const. § 116. The KBA has been vested with the authority of this Court to administer that responsibility. SCR 3.025. See also KBA v. Shewmaker, 842 S.W.2d 520, 521 (Ky.1992).
“Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions.” Restatement (Second) of Torts § 587 (1977). The disciplinary process has been likened to a criminal trial. KBA v. Harris, 269 S.W.3d 414, 417–18 (Ky.2008). The Office of Bar Counsel is empowered to assess complaints, investigate and prosecute disciplinary cases, and impose alternative discipline when appropriate. SCR 3.160(3)(A). The Inquiry Commission has authority to subpoena witnesses and take testimony. SCR 3.180(3). The Trial Commissioner enters findings of fact and conclusions of law. SCR 3.360(1). Clearly, the KBA exercises a judicial function in the handling of disciplinary matters and, therefore, disciplinary hearings are judicial proceedings. See 77 A.L.R.2d 493 (collecting authorities). See also Baggott v. Hughes, 34 Ohio Misc. 63, 72, 296 N.E.2d 696, 701 (1973) (“Investigations and proceedings on complaints as to an attorney’s professional conduct is a judicial function in Ohio.”). Accord McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512 (1933); Ashton–Blair v. Merrill, 187 Ariz. 315, 928 P.2d 1244 (Ariz.Ct.App.1996); Doe v. Rosenberry, 255 F.2d 118 (2nd Cir.1958).
Thus, any statement made preliminary to, in the institution of, or during the course of an attorney disciplinary proceeding will be privileged so long as it is material, pertinent, and relevant to such proceeding. This would include statements contained in the ethics complaint. The complaint triggers the investigative and disciplinary functions of the KBA and, therefore, is always material, pertinent, and relevant to attorney discipline proceedings. See Katz v. Rosen, 48 Cal.App.3d 1032, 1036, 121 Cal.Rptr. 853 (Cal.Ct.App.1975) (“Informal complaints received by a bar association which is empowered by law to initiate disciplinary procedures are as privileged as statements made during the course of formal disciplinary proceedings.”).
Contrary to the trial court’s determination, this conclusion is not swayed by the fact that the charges against Botts were ultimately dismissed. See Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) (doctrine of absolute immunity barred attorney’s suit against former client’s spouse who filed grievance against attorney that was later dismissed). Little explanation is needed to emphasize that a lack of evidentiary support is not the equivalent of a finding of falsehood. Regardless, even if patently false or entered with malice, Kentucky’s judicial statements privilege is absolute and would still apply. Accord Sinnett v. Albert, 188 Neb. 176, 195 N.W.2d 506 (1972) (judicial statements privilege protects contents of attorney ethics complaint
[348 S.W.3d 603]
so as to bar subsequent suit against complainant for libel); Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (Md.Ct.Spec.App.1974) (absolute privilege pursuant to judicial statements doctrine attaches to statements contained in attorney disciplinary complaint).
A larger question is posed, however, because Botts’ complaint also alleges wrongful use of civil proceedings, abuse of process, fraud, and outrageous conduct. Stated otherwise, his claims are based not only on Appellants’ statements contained in the KBA complaint, but also on the act of filing the complaint. Whether the judicial statements privilege encompasses the act of filing the complaint is also a matter of first impression in Kentucky.
It seems that, until roughly the mid-twentieth century, courts assumed the right of an attorney to sue for malicious prosecution or other similar tort actions based on the filing of a disciplinary complaint. See generally 52 A.L.R.2d 1217 (2011). Indeed, a very early Kentucky case seems to acknowledge the right of an attorney to pursue a malicious prosecution action against the attorney who instigated disbarment proceedings against him. See Lancaster v. McKay, 103 Ky. 616, 45 S.W. 887 (1898) (in action predating the Rules of Professional Conduct and the establishment of the Bar Association as having jurisdiction over disciplinary proceedings, judgment ultimately reversed for insufficiency of proof that disbarment suit lacked probable cause). However, in the latter part of the twentieth century, a growing trend emerged to bar any type of civil action predicated upon the filing of an attorney discipline or ethics complaint.
At least twenty-eight states have evinced a policy decision to bar such civil suits through enactment of a court rule or statute.2 These provisions, whether granting absolute or qualified immunity to communications made to the disciplinary authority, also prohibit any type of lawsuit based on the privileged communication or complaint. Tennessee Supreme Court Rule 9, § 27 is representative of this type of court rule: “Communications to the board, district committee members or Disciplinary Counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witnesses.” (Emphasis added.) Each of these rules uses similarly expansive language barring any “lawsuit,” “civil suit,” or “civil liability” without restricting the prohibition to suits for defamation, libel or slander. Cf. WV R Lwyr Disc Rule 2.5 (West Virginia designates that all information provided to the disciplinary authority “shall be privileged in any action for defamation.”). Though few cases exist interpreting the typically broad language of these rules, at least four courts have specifically concluded that the privilege would bar even claims relating to the act of filing the complaint, such as malicious prosecution or abuse of process. See
[348 S.W.3d 604]
Wallace v. Jarvis, 119 N.C.App. 582, 459 S.E.2d 44 (1995); Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) (interpreting rule which affords judicial immunity to participants in the attorney discipline process); In re Smith, 98,9 P.2d 165 (Colo.1999) (interpreting former rule); Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai‘i 92, 176 P.3d 91 (2008). But see Goldstein v. Serio, 496 So.2d 412 (La.Ct.App.1986) (holding that rule affording privilege to contents of bar complaint does not extend to the act of filing the complaint).
While the majority of states protect complainants through enactment of a statute or rule, some have achieved the same result through application of the judicial statements privilege and, thus, are more persuasive in consideration of the present matter. In Stone v. Rosen, Florida recognized that an absolute privilege protects statements made to the Bar Association in a complaint which operates to prohibit the attorney’s claim of malicious prosecution against the complainant. 348 So.2d 387 (Fla.Dist.Ct.App.1977). The holding in Stone was later reaffirmed by the Florida Supreme Court, notwithstanding subsequent passage of procedural rules which removed confidentiality of the grievance process. Tobkin v. Jarboe, 710 So.2d 975 (Fla.1998). The Court of Appeals of Arizona reached a similar result in Drummond v. Stahl, wherein the plaintiff-attorney filed suit against opposing counsel alleging tortious interference with a contractual relationship through the filing of a bar complaint. 127 Ariz. 122, 618 P.2d 616 (Ariz.Ct.App.1980). The court determined that the judicial statements privilege affords complainants an absolute privilege for statements made in attorney discipline proceedings, and that the privilege operated to bar the plaintiffs claim of tortious interference. Id. at 619–20. See also Ashton–Blair, 928 P.2d at 1246–47 (applying absolute privilege under judicial statements doctrine to bar attorney’s claim for defamation against complainant).
Though there is some authority to the contrary, see, e.g., Goldstein, 496 So.2d 412, we conclude that the judicial statements privilege encompasses the act of filing the complaint, in addition to the statements contained therein. Sound public policy compels this conclusion. “The doctrine of privileged communications rests upon public policy ‘which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’ ” Schmitt, 163 S.W.2d at 284 (quoting Bartlett v. Christhilf, 69 Md. 219, 14 A. 518, 520 (1888)).
This rationale applies no less to attorney discipline proceedings. In order to maintain a self-regulating profession, the investigation of unethical conduct must be vigorous and complainants must be free from threat of any civil liability.
Any lesser grant of immunity would have a chilling effect on the reporting of attorney misconduct. See Jarvis, 830 P.2d 23 at 26 (internal quotations omitted) ( [“A]pprehension of personal liability for presenting a question of professional responsibility to the disciplinary administrator might tend to subvert the system established for ensuring that persons holding licenses to practice law are fit to be entrusted with professional and judicial matters.”).
The purpose of this policy would be eviscerated if the protection extends only to the statements contained in the complaint itself, but not to the act of filing the grievance. While Justice Noble is correct in her dissent that sometimes the attorney and the complainant may be equally sophisticated and on “equal-footing,” this is often not the case. When the complainant is not an attorney, there is an inequitable balance of power which creates a very real opportunity for attorney intimidation. Attorneys
[348 S.W.3d 605]
can threaten and pursue retaliatory litigation at very little expense and through their own means. “Conversely, the cost of litigation coupled with the risk of liability in defending against such an action could be enough to discourage an individual from bringing a meritorious complaint.” Tobkin, 710 So.2d at 977. Laypersons, in deciding whether to file a bar complaint, cannot be expected to understand the subtle legal difference between an allegation of defamation versus a claim of abuse of process. And it is insufficient that an “honest” complainant would eventually be exonerated of any abuse of process claim. It is the threat and potential for retaliatory litigation—of any kind—that serves as a disincentive to filing a bar complaint.
We must encourage persons with complaints against attorneys to submit such information to the KBA for proper investigation and examination. This includes persons who might lack knowledge of the law and, therefore, have some doubt as to the propriety of the attorney’s conduct or the validity of the complaint. “If ethics investigations are to be conducted effectively, it is imperative that complainants be free from the threat of themselves being sued.” Farber v. Dale, 182 W.Va. 784, 392 S.E.2d 224, 227 (1990). This includes the act of filing the bar complaint itself. The threat of any retaliatory suit—whether it is for defamation, slander, or abuse of process—would have a chilling effect on the filing of bar complaints.
We do not believe our holding today unduly burdens attorneys or otherwise abrogates a right. Rather, certain causes of action do not exist in privileged situations. Here, “one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights or causes of action….” Stone, 348 So.2d at 389.
If a bar complaint is determined to be based on probable cause and results in disciplinary action, then clearly the attorney has no cause of action against the complaining party. If the complaint is deemed lacking in probable cause, or even entirely without merit, any harm to the attorney is minimal and would amount to little more than mere inconvenience.
In Kentucky, the bar complaint, the investigation by the Inquiry Commission, and the disciplinary proceedings are entirely confidential. SCR 3.150(1). In fact, there is no publication whatsoever unless, and until, a public reprimand or other public discipline is imposed. Id. As such, the potential harm suffered by an attorney at the hands of the malicious complainant—if indeed the complaint lacks merit—
Opinion of the Court by Justice CUNNINGHAM.
MINTON, C.J.; ABRAMSON and VENTERS, JJ., concur. NOBLE, J., dissents by separate opinion. SCOTT, J., also dissents by separate opinion in which SCHRODER, J., joins.NOBLE, J., dissenting:
Dissent by Justice Noble:
The majority errs primarily in extending the judicial statements privilege so that it bars even actions related to the filing of a complaint or initiation of suit or prosecution.
I must agree with Justice Scott, who notes that at least some of Appellee’s claims—specifically his claim for wrongful use of civil proceedings and outrageous conduct—are not based on the “judicial statements” in this case. Instead, they stem directly from the act of wrongfully filing the bar complaint, regardless of the complaint’s content. Assuming the Appellee’s claims are true, which we must at this point, the filing of the bar complaint resulted in Appellee’s being temporarily suspended from the practice of law, which substantially affected his income and led to other civil claims being brought against him, and in his having to pay to defend himself at the disciplinary proceedings—all of which the majority dismisses as “minimal and … little more than mere inconvenience.” So, if the judicial statements privilege only extends to those claims based on the content of the judicial statements, e.g., a defamation claim for statements in the bar complaint, at least some of Appellee’s other claims must survive.
The judicial statements privilege can apply only when the claim stems from the statements made in the judicial proceeding, not from the act of wrongfully bringing the action without probable cause. See Smith v. Hodges, 199 S.W.3d 185, 192 (Ky.App.2005) (reviewing cases applying privilege to malicious prosecution claims and noting they are “based upon grand jury testimony”). In deciding if the privilege applies, the focus must be on the allegedly tortious act—either a false statement or the wrongful institution of an action. If the tort claim, whether for defamation, perjury, or even malicious prosecution, is based on a false statement, the privilege can bar it. But if the tort claim is based on the institution of the action, the privilege has no applicability whatsoever. To hold otherwise would subsume entirely the torts of malicious prosecution and wrongful institution of civil proceedings in the privilege, even outside the context of bar complaints. The majority’s reading of the privilege would effectively destroy the torts of malicious prosecution and outrage in other contexts.3
Second, while this Court is charged with governing the practice of law, an attorney who is exercising his or her right to access to the courts is not engaging in the practice of law. If filing a personal law suit is the practice of law, then the courts will be overwhelmed with illegal practice claims, as that is essentially what every unlicensed plaintiff would be doing. While this analogy may sound absurd, it illustrates that the Court’s only constitutional authority here is to govern the actual practice of law. Unless exercising one’s right to access to the courts is somehow unethical so as to impact an attorney’s actual practice of law, this Court has zero authority to tell an attorney or any other citizen that he or she cannot file a lawsuit absent overwhelming public interest to the contrary.
Third, creating and applying this privilege only to attorneys simply is not justified by any substantial evidence, though the privilege certainly impacts an attorney’s substantial rights. There is only supposition that allowing an attorney to bring a wrongful institution of civil proceedings or outrageous conduct action would result in legitimate claims not being made. No studies have been presented, not even rudimentary surveys. Applying a privilege to these causes of action requires acting on a possibility of chilling but results in a certainty of deprivation of rights.
Additionally, this concern over a possible chilling effect presumes that all such clients are the so-called “little guy,” who is unsophisticated, perhaps uneducated, and therefore stands powerless next to the attorney, who is learned in the law and an officer of the courts. But, as amply illustrated by this case, clients are frequently at least on an equal footing with their counsel, if not in a superior position, having the resources of large multinational corporations. Allowing such a client an absolute privilege to file a bar complaint
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would invite abusive practices by which the client seeks to bend the attorney to its will and force him to take (or not to take) a course of action that he or she deems prudent.
Moreover, this Court cannot take the position of splitting hairs, so as to allow the privilege for the “little guy” but not for the powerful or sophisticated client. Interestingly, there is little or no likelihood that an attorney will even bring a malicious prosecution claim against the sort of client who the privilege is intended to protect. Such a suit would rarely be worthwhile.
Consequently, I dissent from the majority opinion and would instead allow Appellee’s claims not covered by the judicial statements privilege, as described above, to proceed.
SCOTT, J., dissenting:
I am compelled to dissent from the majority’s conclusion that bar complainants enjoy absolute—rather than qualified—immunity from civil liability rightfully arising from the filing of an alleged malicious bar complaint. I simply do not believe the majority’s conclusion is supported by the Constitution of this Commonwealth or sound precedent of this Court.
Bar complaints have the potential to devastate an attorney’s reputation—the lifeblood of any lawyer’s practice. In fact, one’s reputation, be it that of a lawyer or not, is so precious in this Commonwealth that the term is enshrined in Section Fourteen of the Kentucky Constitution, a provision that commands:
All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
SCHRODER, J., joins.