Abel and Ola Osundairo, the two brothers implicated in the hoax attack on Jussie Smollett, are heading back to court. This time however they will be appearing as plaintiffs in a defamation case against Smollett’s attorneys,  Tina Glandian and Mark Geragos. It is a relatively rare case against counsel and could test the limits of legal privilege in defamation.

Lawyers and witnesses have absolute privilege in court for statements made about others. The reason is obvious. Most of what lawyers and witnesses say would constitute defamation outside of court. Lawyers are often accusing people of crimes or lying in court. However, that litigation privilege can be lost once a lawyer walks outside of court. It applies to certain out of court statements including, as we discussed, some pre-trial letters. For example, the Court of Appeals of Maryland held that the absolute privilege applied to the publication of pleadings online and dissemination of the pleadings to the press in Norman v. Borison (2011). Many states extend privilege to delivering papers outside of court, giving pleadings to the media, correspondence related to litigation. Statements characterizing filings fall into an uncertain area and lawyers have been sued for public statements about opposing parties.

Recently Alan Dershowitz threatened to sue the lawyers of victims of sexual offender Jeffrey Epstein. Instead, Dershowitz himself was sued for defamation.

In this case, Geragos and his firm defended Smollett by blaming the brothers for leading “a criminally homophobic, racist and violent attack against Mr. Smollett.” They alleged that the lawyer knew that these statements were untrue and that their client had orchestrated the hoax

Their lawyer has said that the Osundairos agreed to help with the hoax but never lied to police.

I have previously written about the disgraceful handling of the case by the Cook County District Attorney — a record that has only become more concerning with recent disclosures of inappropriate actions taken by District Attorney Kim Foxx.

This defamation case could force Smollett to address some of the allegations under oath. However, a court must first address the scope of any privilege afforded to counsel. It is likely to be limited by the court in media statements made by counsel. Lawyers have been successfully sued for such statements that stayed from the most basic discussions of the position of their clients in the courts.

For example, in Kennedy v. Zimmerman (Iowa 1999), the Iowa Supreme Court reversed a finding of absolute privilege by an attorney (Zimmerman) who told a reporter that the prior attorney representing his client (Kennedy) was responsible for a “breach of her ethical duties and negligent.”  The Court accepted the absolute privilege stated in the Restatement of Torts (Section 586)

 This privilege is best stated in the Restatement of Law (Second) of Torts section 586 “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 part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceedings.” However, it also ruled that “statements made during an occasion outside a judicial proceeding are not covered.” Thus, while “[t]he duties and actions of a lawyer in representing a client are not confined to judicial proceedings,” the court ruled that interviews with a reporter would fall outside of the privilege. It is important to note that most courts simply reject the notion of an absolute privilege while considering a more limited possible privilege for out-of-court statements. See Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54, 58 (1962) (the “absolute privilege will not attach to counsel’s extrajudicial publications, related to the litigation, which are made outside the purview of the judicial proceeding”).

Even pre-trial letters of notice have been held potentially defamatory. In Front, Inc., v. Philip Khalil, No. 19, 2015 WL 750965 (N.Y. Feb. 24, 2015), a court rejected an absolute privilege argument over a letter sent to a design firm ex-employee (Khalil) accused of downloading proprietary information. Front’s lawyers then sent a letter to Khalil and new firm, demanding that Khalil “cease and desist from using Front’s confidential and proprietary information, return the proprietary information he had taken, and refrain from contacting Front’s clients.” Later, Khalil filed a third-party complaint against Front and its counsel for libel per se based on the statements in the demand letter.

In the Khalil case, Judge Sheila Abdus-Salaam of the NY Appellate Court held an absolute privilege would be “problematic” and “unnecessary.” While lawyers given latitude (as in this case) in these communications, they can lose the privilege where the intent is to “bully, harass, or intimidate their client’s adversaries.” Moreover, an attorney or its client may lose the privilege if the anticipated litigation is “baseless,” “wholly unmeritorious” or “unsupported in law and fact.” Likewise, in 2013, the Florida Supreme Court reached same result in in DelMonico, et al. v. Traynor for pre-trial interviews with potential witnesses and rejected an absolute privilege.  Justice Barbara Pariente ruled statements have a qualified privilege and require a showing of “express malice,” that the primary intent in making the statements was to damage the plaintiff’s reputation. 

This case could create some important new precedent in addressing not just privilege interests but free speech interests.