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CHARLES B.

“BRAD” FRYE
ATTORNEY AND COUNSELOR AT LAW
LINDEMAN, ALVARADO & FRYE
808 Travis, Suite 1101
Houston, Texas 77002
MEMORANDUM (713) 236-8700
The Litigation Privilege Fax: (713) 229-8031

Often, lawyers make statements in connection with a pending legal proceeding which
would be, in another context, slanderous or libelous. However, a lawyer has an "absolute
privilege" to be free from the threat of liability for slanderous or libelous remarks made in
connection with litigation. The common law, and the case law in Texas, is very clear on this
issue.

Communications made during the course of judicial proceedings are absolutely


privileged. Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994); Hill v. Herald-Post Pub. Co.,
877 S.W.2d 774, 782-783 (Tex. App. -- El Paso) aff’d in part, rev’d in part, 891 S.W.2d 638
(Tex. 1994). The immunity is absolute even though the statement is false or uttered or published
with express malice. Hill, 877 S.W.2d at 782. The privilege extends to statements made by the
judge, jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings. Id.
The privilege applies to out-of-court communications that bear some relationship to the
proceeding. Id. Whether the alleged defamatory statement is related to the judicial proceeding is
a question of law to be decided by the court. Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex.
App. -- San Antonio 1997, no writ). The standard is not "relevance," but only some relation,
and all doubt should be resolved in favor of the communication’s relation to the proceeding.
Odeneal v. Wofford, 668 S.W.2d 819 (Tex. App. -- Dallas 1984, writ ref'd n.r.e.).

In Russell v. Clark, 620 S.W.2d 865 (Tex. Civ. App. -- Dallas 1981, writ ref'd n.r.e),
the Court of Appeals wrote at length regarding the use of an attorney’s communication regarding
litigation. The Court of Appeals extended the doctrine of absolute privilege to out-of-court
communications to third parties (not necessarily even clients) made by attorneys preliminary to
judicial proceedings, or in connection with those proceedings. The Court of Appeals opinion is
especially instructive for the case at bar:

An absolutely privileged communication has been held to be one for which, by reason of
the occasion on which it was made, no remedy exists in a civil action for libel or slander,
even though the statements made, whether oral or in writing, are false and are uttered or
published with express malice. Reagan v. Guardian Life Insurance Co., 166 S.W.2d
909 (1942).

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THE LITIGATION PRIVILEGE


Charles B. “Brad” Frye (713) 236-8700 1
It is no longer seriously questioned that all proceedings in courts of this state are
absolutely privileged, and in no event will any part thereof afford grounds for an action of
libel. Reagan v. Guardian Life Insurance Co. of Texas, supra.

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Although Texas has not yet extended the doctrine of absolute privilege to out-of-court
communications made by attorneys preliminary to a judicial proceeding, or in connection
therewith, we think the doctrine should be so extended. Public policy demands that
attorneys be granted the utmost freedom in their efforts to represent their clients. To
grant immunity short of absolute privilege to communications relating to pending or
proposed litigation, and thus subject an attorney to liability for defamation, might tend to
lessen an attorney s efforts on behalf of his client. The conduct of litigation requires more
than in-court procedures.

Russell v. Clark, 620 S.W.2d at 868.

The Court of Appeals, in its "writ refused, no reversible error" opinion in Russell v.
Clark, quoted with approval the Restatement of Torts (Second), Section 586 (1977):

An attorney at law is absolutely privileged to publish defamatory matter concerning


another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a judicial proceeding in which he
participates as counsel, if it has some relation to the proceeding.

Russell v. Clark, 620 S.W.2d at 869.


Further, Comment a of Section 586 of the Restatement, as quoted by the Court of
Appeals in Russell v. Clark, continues:

The publication of defamatory matter by an attorney is protected not only when made in
the institution of the proceedings or in the conduct of litigation before a judicial tribunal,
but in conferences and other communications preliminary to the proceeding.

Russell v. Clark, 620 S.W.2d at 869.

The Dallas Court of Appeals explicitly adopted the Restatement of Torts (Second),
Section 586 (1977) as set out above, and the decision was left undisturbed by the Texas Supreme
Court, with the notation "no reversible error." MADEKSHO’s conduct and communications
with his clients prior to the 189th District Court lawsuit, including his communications with them
about the subject matter of that suit, is absolutely privileged and cannot form the basis of
Plaintiffs’ causes of action in libel or slander.

THE LITIGATION PRIVILEGE


Charles B. “Brad” Frye (713) 236-8700 2
In 1982, the Texas Supreme Court decided James v. Brown, 637 S.W.2d 914, holding
that communications and publications made in the due course of a judicial proceeding will not
serve as the basis for a defamation action. And, in HBO v. Harrison, 983 S.W.2d 31 (Tex. App.
Houston [14th Dist.] 1998), the Houston Court quoted James v. Brown and, additionally, cited
Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App. San Antonio 1997, no writ). As noted
in HBO v. Harrison, Thomas v. Bracey stands for the proposition that this absolute privilege has
been extended to communications made in contemplation of and preliminary to judicial
proceedings. See HBO v. Harrison, 983 S.W.2d at 44, citing Thomas v. Bracey, 940 S.W.2d at
343.

This Memorandum was prepared by Charles B. Frye, Attorney and Counselor at Law,
Houston, Texas. It is not billed to the client to whom it was presented and no charge for
time will appear on the client’s statement for legal services. The Memorandum is
intended to assist the client in understanding some basic legal issues about the question
presented and to help the client understand when legal services may be needed. This
Memorandum is not intended as legal advice pertaining to any specific situation the
client may have. Please note the date of the preparation of the Memorandum and be
advised that the law -- both statutes passed by the legislature and cases decided by
appellate courts -- changes from time to time and those changes may affect the statements
contained herein. Each legal problem is unique because of its’ facts – always seek legal
advice from a competent attorney when confronted by a legal question so that the facts
may be appropriately applied to the law. Should you have any questions or need
assistance, please feel free to call Mr. Frye at (713) 236-8700.

THE LITIGATION PRIVILEGE


Charles B. “Brad” Frye (713) 236-8700 3