It's Valentine's Day, so of course let's discuss whether Levin Middlebrooks should be extended to an attorney's ex parte out of court interviews of potential third-party witnesses.
Should we use the usual absolute immunity analysis, or create a new qualified privilege to cover this particular circumstance?
Answers Justice Pariente:
We hold that Florida’s absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.But Justice Lewis, in dissent, no likey:
I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of express malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.
Hey, I think Justice Lewis is on the right side of this one.
What say you?
In other news, the elusive butterfly himself, Richard Brodsky, has a new blog, Splendid Spitter, which contains an eclectic collection of erudite and well-informed opinions on a variety of interesting topics -- in other words, the exact opposite of this crappy space!
Good luck Richard (and keep after those auditing firms in the Miami Beach Community Health Center matter).
Oh, and a happy happy Valentine's Day -- enjoy the evening with someone you love.