The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Lawyer's Letter to School Seeking Money for Long-Past Alleged Sexual Abuse by Ex-Teacher May Be Libelous,

notwithstanding the “litigation privilege,” if the statute of limitations has long passed and there is therefore no reasonable prospect of meritorious litigation.


From Ralston v. Garabedian, decided Thursday by Judge Mark Kearney (E.D. Pa.):

A lawyer representing a former student may notify a school of a former teacher allegedly sexually abusing his client twenty-plus years earlier. The lawyer may privately do so with no court or media involvement when the former student does not want public review of the sexual abuse claim. But assertions of student sexual abuse may harm a teacher's reputation. And valid policy reasons protecting lawyers' advocacy fade when the lawyer does not seriously contemplate litigation.

We today address whether a lawyer's two letters to a private school headmaster in 2018 containing allegations of sexual abuse against a former teacher from 1993 to 1995 and demanding a million dollars in compensation even though his claims are barred by the statute of limitations may be defamatory. The lawyer and his client seek summary judgment. They argue, among other things, the private letters are privileged and the former teacher accused in the letter cannot show the lawyer possessed actual malice necessary to proceed on the defamation claim.

We balance the right to fully report sexual abuse with the teacher's rights to protect his reputation from false statements. The lawyer and his client have not shown they are entitled to summary judgment dismissing the former teacher's defamation claim. They have not shown us a basis for a privilege or an actual malice standard applying to the statements made about the former teacher in the private letters. We deny the lawyer's and his client's motions for summary judgment….

We deny Attorney Garabedian's Motion for summary judgment because: (1) judicial privilege does not apply because Attorney Garabedian did not seriously contemplate judicial or quasi-judicial proceedings when he sent the 2018 letters; (2) Mr. Ralston need not show Attorney Garabedian published with actual malice because Mr. Ralston is not a limited-purpose public figure; (3) genuine disputes of material fact as to Attorney Garabedian's negligence preclude application of a conditional privilege; (4) Attorney Garabedian did not need to publish the 2018 letters in Ohio where Mr. Ralston lived; and (5) Mr. Ralston need not show "special harm" as Attorney Garabedian defines it to succeed on a defamation claim….

In particular, here's the heart of the court's analysis on item 1, the litigation privilege:

Attorney Garabedian argues judicial privilege bars Mr. Ralston's defamation claims. He argues he sent the 2018 letters while serving a client—Mr. Poulos—who contemplated filing a lawsuit when the letters were sent. Mr. Ralston responds judicial privilege does not apply because Attorney Garabedian agreed he would not file suit and did not seriously contemplate judicial or quasi-judicial proceedings. We find the judicial privilege does not apply because Attorney Garabedian does not show he seriously contemplated instituting judicial or quasi-judicial proceedings when he sent the 2018 letters…..

The judicial privilege entitles a person "to absolute immunity for 'communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.'" "[T]he judicial privilege is not limited to statements made in open court." It also covers "less formal communications such as preliminary conferences and correspondence between counsel in furtherance of the client's interest." "The contours of the privilege … have been shaped by a case-by-case evaluation of whether its application in specific circumstances is needed to advance its underlying policy objectives."

The judicial privilege's policy objectives include the "fundamental societal need for justice to be administered freely and efficiently through the eliciting of speech from parties and witnesses that may be accusatory or otherwise reflect negatively upon another's character." The privilege encourages "[a]ll persons involved in a judicial proceeding … to speak frankly and argue freely without danger or concern that they may be required to defend their statements in a later defamation action." It "is an integral part of a public policy which permits all suitors, however bold and wicked, however virtuous and timid, to secure access to the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate."

"The essential realm of protected communication is not, however, without bounds." Pennsylvania courts limit the privilege's application where the "policy considerations" animating the privilege "would not be implicated." The privilege applies to "communications preliminary to a proposed judicial proceeding … only when the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by the witness or a possible party to the proceeding." "The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered." "Where a declarant has no intention of initiating proceedings or otherwise obtaining a remedy, clothing his or her statement with immunity cannot serve" its "goal" of "incentivizing individuals to … speak freely in seeking to initiate judicial or quasi-judicial proceedings."

The issue is whether Attorney Garabedian contemplated in good faith and seriously considered initiating a judicial or quasi-judicial proceeding when he wrote the 2018 letters accusing Mr. Ralston of sexually abusing Mr. Poulos. We find he offers no evidence of doing so….

Attorney Garabedian and Mr. Poulos swear they knew the statute of limitations had expired for Mr. Poulos's potential claims when Attorney Garabedian sent the 2018 letters. Attorney Garabedian and Mr. Poulos memorialized this understanding in their contingent fee agreement signed before Attorney Garabedian sent the 2018 letters. They agreed "a complaint or lawsuit will not be filed in this matter because the Statute of Limitations has run or expired." This agreement governed the scope of Attorney Garabedian's representation of Mr. Poulos. Attorney Garabedian sought to obtain a remedy for Mr. Poulos—but not through a judicial proceeding. The April 2018 letter described itself as "an attempt to settle and compromise claims," but our determination of the privilege's application necessitates "an inquiry into the factual issue of the speaker's intent." The letter's self-serving characterization does not create a genuine dispute of material fact regarding Attorney Garabedian's actual intent, which his contingent fee agreement reveals. The parties' written agreement forecloses Attorney Garabedian's serious contemplation of judicial proceedings when he published the 2018 letters….

Attorney Garabedian argues he seriously contemplated quasi-judicial proceedings because he intended to mediate his dispute and intended to instigate an investigation into Mr. Ralston. We disagree these proceedings are quasi-judicial.

The Pennsylvania Supreme Court applies the judicial privilege to communications made in anticipation of a quasi-judicial proceeding. Quasi-judicial proceedings are those in which "tribunals … perform judicial functions, such as proceedings by administrative officers, boards, and commissions." A proceeding is "quasi-judicial" if "it involves the exercise of discretion and requires notice and a hearing." Pennsylvania courts "look to the presence and exercise of discretionary decision-making authority (i.e., applying the law, rules and regulations to the factual matrix of a given case) as well as the existence of procedural safeguards in the administrative proceeding similar to the safeguards afforded at a judicial proceeding (e.g., notice, hearing, right to cross-examine witnesses, etc.)." Our Court of Appeals held "government involvement" is "a necessary condition for according quasi-judicial status to grievance procedures" under Pennsylvania law.

Attorney Garabedian argues he intended to initiate proceedings because he repeatedly suggested mediation to Attorney Rees. Mediation is not a quasi-judicial proceeding. A mediator does not possess "discretionary decision-making authority"; rather, she intervenes "between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute." Mediation is a private form of dispute resolution which does not involve administrative functions or government bodies. The parties may take or leave the mediator's suggestions….

Mr. Ralston correctly argues the adduced facts today contrast with our 2019 findings in Fogel v. University of the Arts, where we applied the judicial privilege to a defamation claim against a university professor who reported sexual misconduct to the university's Title IX officer. We found the professor's allegations privileged because she intended to "initiate … quasi-judicial proceedings" by reporting misconduct to the university's Title IX officer. Unlike the Hill School's private investigation, a Title IX investigation is quasi-judicial by involving an administrative body with discretionary decision-making authority. Judges in our District reject application of the judicial privilege to "entirely private grievance procedure[s]." …

Our findings today should not be read to discourage abuse victims from reporting abuse, especially in schools. The law must encourage abuse victims to hold malfeasant educators accountable. And it does so. We affirm the judicial privilege usually does protect those reporting educators' misconduct—but only when those allegations are made to hold the educators accountable. Allegations for this proper purpose are usually made to those with the judicial or quasi-judicial authority to police the abusers. Even if the allegations are made simply to start the process of holding educators accountable, the judicial privilege protects the accuser from defamation liability.

Here, though, Attorney Garabedian did not intend to begin a proceeding which would hold Mr. Ralston accountable. To the contrary, Attorney Garabedian's April 2018 letter offered to "settle and compromise" claims arising out of Mr. Ralston's purported abuse. Attorney Garabedian did not seek to hold anyone accountable—he sought a million dollars. The judicial privilege does not protect this behavior which admittedly never sought a judicial remedy….