“Loose Lips Sink Ships”…But Not If Judicially Privileged: Protecting Attorney Pre-Litigation Communications

Attorneys are charged with vigorously representing their clients, but can client advocacy become grounds for tort liability in defamation and intentional infliction of emotional distress? In Doe v. Garabedian, et al., 2019 U.S. Dist. LEXIS 171835 (E.D. Pa. Oct. 2, 2019), the U.S. District Court for the Eastern District of Pennsylvania determined that statements made in pre-litigation demand letters that are “pertinent and material to the contemplated proceeding” are protected by the absolute privilege of judicial immunity. The plaintiff’s defamation and intentional infliction of emotional distress claims arising out of the defendant’s demand letters were dismissed without and with prejudice, respectively.

Garabedian arose out of allegations that the plaintiff, of Mr. Doe, sexual abused Kurtis Poulos, the plaintiff’s student at a Pennsylvania boarding school. The alleged abuse occurred approximately 25 years prior. The defendants, Mitchell Garabedian, Esq. and the Law Offices of Mitchell Garabedian, represented Mr. Poulos and had sent two pre-suit demand letters to the school, detailing the alleged sexual molestation and seeking $1 million in settlement.

On April 11, 2018, the Garabedian defendants sent a settlement demand letter to the headmaster at the plaintiff’s employer, demanding $1 million to settle Mr. Poulos’ claims against the school for Doe’s alleged repeated sexual molestation from approximately 1993 through 1995 while the plaintiff was “assigned to or affiliated” with the school. The school’s lawyers requested additional information. On December 26, 2018, the Garabedian defendants sent a second, more detailed letter to the school’s attorney, stating in part, “[d]uring the course of Mr. Poulos’s sophomore year, [Doe] sexually abused Mr. Poulos in [Doe]’s geometry classroom between approximately 10 and 15 times.” The Garabedian defendants failed to respond to subsequent communications from the school or its counsel, and Poulos and his attorneys did not file a complaint against Mr. Doe or the school for the alleged sexual abuse.

On April 10, 2019, Doe initiated a lawsuit against the Garabedian defendants and Mr. Poulos, alleging defamation and intentional infliction of emotional distress arising out of the two demand letters, and, more specifically, the accusations of sexual molestation and sexual abuse. In their motion to dismiss, the Garabedian defendants argued that these statements were subject to the judicial immunity privilege, a question of law for the court.

In Pennsylvania “statements made by…attorneys…in the course of or pertinent to any stage of judicial proceedings are absolutely privileged and, therefore, cannot form the basis for liability for defamation” barring over publication, i.e., “a statement initially privileged because [it was] made in the regular course of judicial proceedings is later republished to another audience outside of the proceedings.” Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa.Super. 1991). For the privilege to attach to pre-judicial proceeding communications, the communications must be pertinent and material, and made with the intent to lead to a judicial or quasi-judicial proceeding. See, Greenberg v. McGraw, 161 A.3d 976, 976, 982 (Pa.Super. 2017); Schanne v. Addis, 121 A.3d 942, 950-52 (Pa. 2015). Furthermore, in Pennsylvania, the judicial privilege shields the attorney from liability for an intentional infliction of emotional distress claim. Thompson v. Sikov, 490 A.2d 472, 474 (Pa.Super. 1985).

In Garabedian, the court determined that the pre-litigation letters were “pertinent and material to the contemplated proceeding” and “sent in the regular course of preparing for a contemplated legal proceeding.” The letters were sent by the defendants in their role as Mr. Poulos’ attorneys, seeking redress for their client. There was no evidence of over publication, where the plaintiff did not allege that defendants published the statements to other individuals, including the school’s governing bodies. Accordingly, the court held the absolute privilege of judicial immunity attached to bar the plaintiff’s defamation claim.

With respect to the intentional infliction of emotional distress claim, the court found the statements in the demand letters insufficient to meet the threshold of “extreme or outrageous conduct” and dismissed the plaintiff’s claim with prejudice. The court cited to, but did not discuss, Pennsylvania precedent indicating a lack of support for upholding an intentional infliction of emotional distress claim based on defamatory language. See, Hill v. Cosby, 2016 U.S. Dist. LEXIS 15795 (W.D. P)a. Feb. 9, 2016).

The Garabedian case clarifies the scope of the absolute privilege of judicial immunity and protects attorneys’ obligation to zealously represent their clients when done in furtherance of preparing for a contemplated proceeding. In an increasingly litigious society, this decision swings the pendulum in favor of protecting attorneys’ pre-suit communications and enables attorneys to persuasively advocate for their clients without threat of a subsequent defamation or intentional infliction of emotional distress suit. However, the privilege is not absolute, and attorneys must be cognizant of the recipients of pre-proceeding communications to avoid “over publication,” which could invalidate the judicial privilege. Per the court’s decision, the inclusion of a “carbon copy” recipient on a demand letter or publication to extraneous parties could be the difference between dismissal, as in Garabedian, and protracted litigation.

*Dana is an associate in our Philadelphia, Pennsylvania office. She can be reached at (267) 519-6597 or dagittleman@mdwcg.com.

_{Defense Digest, Vol. 26, No. 1, Spring 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}