Statements made by litigants and their attorneys in
judicial proceedings cannot form the basis for a defamation
action because they are protected by an absolute privilege. But what if an
attorney, desirous of increased media exposure, takes copies of what might
otherwise be considered slanderous statements and forwards them to the media? Do
statements made in judicial proceedings lose their privileged status when
republished to third parties? The answer, according to Norfolk judge Charles E.
Poston, is that it depends on whether the attorney acted with malice.
In D'Alfio v. Theuer, a sea captain sued a lawyer who had
filed at least one lawsuit against him on behalf of a client claiming employment
discrimination. The lawsuit, the sea captain contended, contained numerous
false and defamatory allegations, such as that the captain had ordered a seaman
on his ship to be handcuffed in retaliation for speaking to a newspaper
reporter and that he had threatened to put him in a straightjacket. What the
captain found particularly troublesome, however, was that the seaman's lawyer
faxed a copy of the lawsuit to the media. He sued the lawyer for defamation.
The lawyer filed a "demurrer" (essentially a
motion to dismiss the complaint) on the ground that the allegedly defamatory
statements were protected by absolute or qualified privilege. Judge Poston
overruled the demurrer and permitted the lawsuit to proceed.
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