Litigation Privilege

Litigation Privilege as a Defamation Defense

Litigation privilege is an absolute privilege to a defamation defense recognized in Illinois and nationwide, in state and federal courts. The absolute litigation privilege provides that a plaintiff cannot state a cognizable defamation claim against a defense counsel for alleged statements made by defense counsel in a communication directly or indirectly related to advancing a client’s interests.

When a court rules on a motion to dismiss a defamation claim for failure to state a claim upon which relief can be granted based on the litigation privilege, the court will resolve all doubts in favor of a finding that the absolute litigation privilege applies, even if a defamatory statement goes beyond the scope of the pending litigation, and even if it is not confined to specific issues related to the litigation.

There are important public policy reasons for the litigation privilege to be an absolute privilege, unlike some qualified defamation privileges, which can be lost from abuse. The absolute litigation privilege protects any statements that bear on the subject at issue in a lawsuit, regardless of the speaker’s motive or the unreasonableness of his or her conduct regarding the truth of a particular statement.

Attorneys have an absolute privilege to publish defamatory matter concerning another person in preliminary communications that lead up to to a proposed judicial proceeding, in the filing of the proceeding, or during the course and as part of a judicial proceeding in which the attorney participates as counsel, if it has some relation to the proceeding. This privilege is intended to provide attorneys with the utmost freedom in their efforts to secure justice for their clients.

This absolute litigation privilege applies no matter which legal theory a plaintiff may asset to in an attempt to impose liability for the statements. For example, the litigation privilege can barred a plaintiff’s claims for invasion of privacy, negligence, negligent infliction of emotional distress, breach of written contract, and breach of oral contract.

The attorneys at Lubin Austermuehle have over thirty years of experience defending and prosecuting defamation, slander libel and cyber smear lawsuits. We are knowledgeable regarding the changes and complexities of this evolving area of the law. We are committed to fighting for our clients’ rights in the courtroom and at the negotiating table. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated non-compete and trade secret and covenant not to compete cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.