Litigation Privilege: It’s Practical History, Development And Application To Litigation In Florida

The litigation privilege is a broad and absolute rule, but easy to misunderstand. Therefore, review of pertinent cases in Florida can provide some clarity on when it protects certain actions. In this video presentation recorded by Adam B. Edgecombe, he describes the cases that have helped define the privilege. Then he shows how these concepts can be applied in everyday legal practice. Lastly, he talks about the ethical considerations to also be considered.

To access the presentation, visit YouTube or click play on the embedded image below. The length of the presentation is 19:22.

What Is The Litigation Privilege?

The litigation privilege was literally defined in the Florida Supreme Court’s findings in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. vs. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla.1994). The court stated that:

“[a]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding…so long as the act has some relation to the proceeding.”

The definition provided by the court in this hallmark case helped to provide the basis of the litigation privilege. However, it did not resolve all questions which would be clarified through additional case law.

In the Levin case, the litigation privilege was first defined by Florida courts

Additional Cases That Provide Insight To The Litigation Privilege

The second major case that helped to support the concept of the privilege was LatAmInvestments, LLC v. Holland & Knight, LLP, 88 So. 3d 240 (Fla. 3d DCA 2011). In the case, the Defendent sued Holland & Knight, the plaintiff’s attorneys, alleging abuse of process in post-judgment collections. The defense submitted that the litigation privilege doesn’t cover abuse of process, and the application would abolish that tort.

Upon appeal of Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA. 2010) to the Florida Supreme Court, the court found that defamatory statements did not enjoy absolute privilege. In cases where an attorney steps outside the courtroom and formal discovery process (ex parte), they would only enjoy a qualified privilege.

Practical Applications In A Law Practice

There are several practical applications of the litigation privilege in everyday law practice, including:

  • The Lis Pendens
  • Depositions
  • §57.105
  • Motion For Fraud on the Court
  • Motion for Sanctions

The key is to remember this privilege relates to law suits, which have as their basis prior law suits. The action being sued upon must have occurred during prior proceedings. Also, it must have been related to the subject matter of the proceedings. In these cases, that action will be protected by the Litigation Privilege.

However, don’t forget that there are ethical considerations. Just because your action is protected by the litigation privilege, doesn’t mean that the action won’t violate Florida Rule 1.310

When interacting with clients, counsel and the court, understand what actions will be protected by the litigation privilege

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