Hecht v. Levin

[This opinion has been published in Ohio Official Reports at 66 Ohio St.3d 458.]

HECHT, APPELLEE, V. LEVIN, APPELLANT.

[Cite as Hecht v. Levin, 1993-Ohio-110.]

Torts—Defamation—Attorneys at law—Complaint filed with grievance committee

of local bar association is part of a judicial proceeding—Statement made

in course of attorney disciplinary proceeding enjoys an absolute privilege

against a civil action based thereon, when—R.C. 2305.28 does not apply to

attorney disciplinary proceedings.

1. A complaint filed with the grievance committee of a local bar association is

part of a judicial proceeding.

2. A statement made in the course of an attorney disciplinary proceeding

enjoys an absolute privilege against a civil action based thereon as long as

the statement bears some reasonable relation to the proceeding. (Surace v.

Wuliger [1986], 25 Ohio St. 3d 229, 25 OBR 288, 495 N.E.2d 939,

approved and followed.)

3. R.C. 2305.28 does not apply to attorney disciplinary proceedings held under

the authority of the Supreme Court of Ohio.

(No. 92-286—Submitted February 10, 1993—Decided June 23, 1993.)

Appeal from the Court of Appeals for Cuyahoga County, Nos. 59445 and 59496.

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{¶ 1} On June 1, 1987, appellee Emanuel H. Hecht filed a complaint for

libel and slander against appellant Michael D. Levin. Levin answered and cross-

claimed against the Cuyahoga County Bar Association ("the bar association"). The

impetus for Hecht's lawsuit was a complaint that Levin had lodged against him with

the bar association in June 1986. Levin's grievance alleged that Hecht, an attorney,

knowingly caused Hecht's father, Jacob Hecht, to sign a "paper" while Jacob was

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incompetent, and that this action resulted in a monetary loss to Jacob. (Levin states

that he is the grandson of Jacob Hecht's wife, Esther Hecht.)

{¶ 2} The trial court initially denied Levin's motion to dismiss, in which he

argued that the statements in his grievance were absolutely privileged against an

action for slander and libel. On February 9, 1990, however, the court granted

Levin's motion for summary judgment as well as the bar association's motion to

dismiss Levin's third-party complaint. Hecht appealed this order to the Eighth

District Court of Appeals. On March 7, 1990, before Hecht appealed, the trial court

vacated its previous denial of Levin's motion to dismiss. The court of appeals

consolidated the appeal of this order with the prior appeal. The court of appeals

reversed, holding that "[t]he absolute privilege does not apply in situations where a

dissatisfied litigant complains to the bar association about the conduct of an

attorney who did not represent him." Finding genuine issues of fact to exist, the

court of appeals remanded the cause to determine whether Levin's statements were

libelous and/or slanderous and whether there was publication of the statements.

{¶ 3} The cause is now before this court pursuant to the allowance of a

motion to certify the record.

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Richard E. Kleinman, for appellee.

Morris Levin Co., L.P.A., Morris Levin and Daniel J. Levin; Levin & Levin

and James A. Levin; Paris & Paris and Thomas A. Paris, for appellant.

Albert L. Bell; Arter & Hadden and Geoffrey Stern, urging reversal for

amicus curiae, Ohio State Bar Association.

Lee I. Fisher, Attorney General, and Loren L. Braverman, Assistant

Attorney General, urging reversal for amici curiae, Board of Commissioners on

Grievances and Discipline of the Supreme Court of Ohio and Office of Disciplinary

Counsel.

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MOYER, C.J.

{¶ 4} We are asked to decide what privilege attaches to statements made in

a grievance filed with a certified grievance committee of a local bar association.

For the reasons stated below, we hold that it is an absolute privilege.

{¶ 5} As an initial matter, we address Levin's argument that Hecht cannot

maintain a defamation action because the filing of a grievance, which is

confidential, is not a publication. The publication of defamatory matter is an

essential element to liability for defamation. "Publication of defamatory matter is

its communication intentionally or by a negligent act to one other than the person

defamed." 3 Restatement of the Law 2d, Torts (1965), Section 577(1). Any act by

which the defamatory matter is communicated to a third party constitutes

publication. Id. at Comment a. Also, it is sufficient that the defamatory matter is

communicated to one person only, even though that person is enjoined to secrecy.

See id. at Comment b. Ohio law recognizes that publication of defamation consists

in communicating it to a person or persons other than the person libeled. Hahn v.

Kotten (1975), 43 Ohio St.2d 237, 243, 72 O.O.2d 134, 138, 331 N.E.2d 713, 718.

{¶ 6} Based on the above authority, we hold that appellant's grievance

complaint filed with the local bar association constituted a publication. For the

purposes of defamation, "publication" does not take on its more common

connotation of widespread dissemination. We discern no reason to disturb the

settled law of defamation and create an exception to the definition of "publication"

for confidential communications to a bar association.

{¶ 7} A statement made in a judicial proceeding enjoys an absolute

privilege against a defamation action as long as the allegedly defamatory statement

is reasonably related to the proceeding in which it appears. Surace v. Wuliger

(1986), 25 Ohio St.3d 229, 25 OBR 288, 495 N.E.2d 939, syllabus. In Surace, the

defendants in a libel action had filed a pleading in a Racketeer Influenced and

Corrupt Organizations Act ("RICO") action that described the plaintiff as an

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"underworld figure." The plaintiff was not a party in the RICO action. This court,

after a thorough historical review of the rule of privilege in judicial proceedings,

adopted the rule of absolute privilege. The sole proviso was that the statement must

bear "some reasonable relation to the judicial proceeding in which it appears." Id.

The fact that the plaintiff was not a party in the RICO action did not affect the

existence of the privilege. Id. at 234, 25 OBR at 293, 495 N.E.2d at 943. Although

we recognized that the rule caused some hardship to the plaintiff, who had no

alternative remedy to protect his reputation, we reasoned that the cogent public

policy of guaranteeing the free flow of information in a judicial proceeding

outweighed the hardship to the plaintiff. Id. at 234, 25 OBR at 292, 495 N.E.2d at

943.

{¶ 8} We must decide in this case whether filing a grievance with a local

bar association is a "judicial proceeding" within the meaning of Surace. Section

2(B)(1)(g), Article IV of the Ohio Constitution grants to this court original

jurisdiction in the discipline of attorneys in Ohio. Pursuant to this responsibility,

this court created Gov.Bar R. V to govern the disciplinary procedure for members

of the bar. As a result, "[i]t is now well established that *** all matters relating to

the discipline and reinstatement of attorneys at law are inherently judicial in nature

and are exclusively under the control of the judicial branch of the government." In

re Nevius (1963), 174 Ohio St. 560, 562, 23 O.O.2d 239, 240, 191 N.E.2d 166, 169.

{¶ 9} In Gov.Bar R. V(1)(A), we created the Board of Commissioners on

Grievances and Discipline ("the board") to assist this court in carrying out its

disciplinary responsibilities. The board has exclusive jurisdiction to recommend

disciplinary action against an attorney. Gov.Bar R. V(2). The board is empowered

to receive evidence, preserve the record, make findings and submit

recommendations to this court concerning complaints of attorney misconduct.

Gov.Bar R. V(2)(B)(1). No complaint can be filed with the board, however, until

it has been investigated by a certified grievance committee of a bar association or

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the Disciplinary Counsel and the committee or counsel has determined that the

complaint is warranted.

{¶ 10} The Ohio State Bar Association and any of the local bar associations

can designate a grievance committee which shall, upon satisfying specific

standards, be certified by the board to investigate allegations of misconduct by

members of the bar and to initiate complaints. Gov.Bar R. V(3)(C). "[A] Certified

Grievance Committee shall investigate any matter filed with it or that comes to its

attention and may file a complaint [with the board] pursuant to this rule in cases

where it finds probable cause to believe that misconduct has occurred ***."

Gov.Bar R. V(4)(C). Gov.Bar R. V sets out specific requirements for filing a

complaint with the board, and a disciplinary proceeding may be initiated only upon

strict compliance with these requirements. Smith v. Kates (1976), 46 Ohio St.2d

263, 75 O.O.2d 318, 348 N.E.2d 320. Pursuant to its constitutional mandate, this

court has given local bar associations an essential role in the process of disciplining

members of the bar.

{¶ 11} This court's imposition of discipline on an attorney or judge is only

the end point of a process that begins with the filing of a grievance with a bar

association or Disciplinary Counsel. Under Gov.Bar R. V, in order for the board

to consider a complaint of attorney misconduct and ultimately make

recommendations to this court, a certified grievance committee (or Disciplinary

Counsel) must file a formal complaint based on an investigation of the alleged

misconduct. In order for a certified grievance committee to take action under

Gov.Bar R. V, someone must bring the alleged misconduct to the committee's

attention. This is usually accomplished when a person with knowledge of the

misconduct files a complaint with his or her local bar association. This court,

therefore, relies on filings with a local bar association, such as the one at the very

heart of this case, to initiate the Gov.Bar R. V disciplinary procedure.

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{¶ 12} Accordingly, we hold that filing a grievance complaint with a local

bar association is a "judicial proceeding" because such a filing initiates the purely

judicial disciplinary procedure created by this court pursuant to Article IV of the

Ohio Constitution. Because statements made in judicial proceedings enjoy an

absolute privilege, we hold that a statement made in the course of an attorney

disciplinary proceeding enjoys an absolute privilege against a civil action based

thereon as long as the statement is relevant and material to the proceeding. The

privilege exists irrespective of the relationship between complainant and attorney,

and irrespective of whether the statement was made in bad faith.

{¶ 13} Public policy supports this conclusion. Just as we held in Surace

that the truth-seeking process in litigation demands the free and unencumbered

exchange of statements, so does the process of maintaining the ethical standards of

the legal profession. A qualified privilege would open the door to retaliatory suits

such as the one in this case and would chill the reporting of attorney misconduct.

Attorneys are particularly well-armed to vex complainants with retaliatory lawsuits.

A claim of bad faith is easily made, and even if the defamation suit ultimately fails

on its merits, the complainant, now defendant, must endure the expense, effort and

emotional anguish of defending the suit. We believe to be overstated the warning

that an absolute privilege will open a "Pandora's box" of grievances against

attorneys. The attorney disciplinary process has been carefully designed to separate

the wheat from the chaff. A grievance is kept private until a panel of the board

makes a finding of probable cause and certifies it to the board. Gov.Bar R.

V(11)(E)(2). Investigation and independent review of a grievance occur at several

stages before this court makes its own independent determination of discipline.

Gov.Bar R. V(4)(C), 6(D)(1), 6(G) and 6(K). These procedures assure that clearly

frivolous complaints are summarily dismissed, with little emotional, professional,

or financial toll on the subject of the complaint. For these reasons, we conclude

that the balance between encouraging people to come forward with legitimate

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complaints and protecting attorneys from harassment is best struck by means of

absolute immunity.

{¶ 14} In addition, judges and lawyers are obligated by their codes of ethics

to report attorney misconduct of which they become aware. Canon 3(B)(3) of the

Code of Judicial Conduct; DR 1-103(A). The rule we adopt today encourages

judges and attorneys to observe their codes of professional conduct without

hesitation or fear of retaliation. Lest an attorney involved in litigation be tempted

to initiate a disciplinary proceeding to gain a tactical advantage over opposing

counsel in litigation, we note that such conduct is itself a disciplinary violation. DR

7-102(A). Our holding today applies to civil actions only and does not prevent

appropriate disciplinary action against lawyers who file bogus grievances to obtain

a tactical advantage in a lawsuit.

{¶ 15} Finally, we address appellee's argument that R.C. 2305.28 creates a

qualified privilege for statements made in attorney grievance proceedings. R.C.

2305.28, as in effect at the time the alleged defamation occurred, did not address

statements made by outside persons to peer review or professional standards review

committees. 136 Ohio Laws, Part I, 708. The statute created a qualified immunity

applying only to members of such committees. Id. In July 1986, one month after

appellant filed his grievance, however, the General Assembly amended R.C.

2305.28 to include subsection (C), which provided:

"No person who provides information to a peer review committee or a

professional standards review committee of a state or local professional

organization *** without malice and in the reasonable belief that the information is

warranted by the facts known to him is liable in damages in a civil action as a result

of providing that information." 141 Ohio Laws, Part I, 449.

{¶ 16} Due to a 1992 amendment, subsection (C), slightly modified, is now

labeled subsection (D). S.B. No. 84.

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{¶ 17} R.C. 2305.28 clearly creates a qualified privilege within its purview.

On its face, moreover, it purports to apply to grievances filed against lawyers with

local bar associations. For the reasons that follow, however, we hold that it does

not.

{¶ 18} The statute applies, in addition to attorneys, to chiropractors,

veterinarians, real estate brokers, architects, engineers, certified public accountants,

public accountants, and registered nurses. Each of these professions has some

internal mechanism for policing professional standards. What distinguishes the

legal profession from these other professions, however, is the pedigree of that

mechanism. No other profession is supervised directly, by constitutional mandate,

by the judicial branch of government. The internal policing of these professions

takes place at a lower, more private level. Any involvement of the courts in the

discipline of the members of these professions is indirect. As we construe the

statute, the General Assembly intended the qualified privilege to apply only to

proceedings in professional standards review committees that are not an integral

part of the process of direct supervision by the judicial branch.

{¶ 19} A contrary reading of the statute would render it unconstitutional.

The Constitution of Ohio places the supervision of attorneys exclusively in the

judicial branch. Any attempt to circumvent the procedures promulgated by the

Supreme Court of Ohio pursuant to its constitutional mandate is an impermissible

incursion into this court's plenary authority. Smith v. Kates, supra, 46 Ohio St.2d

at 265, 75 O.O.2d at 319, 348 N.E.2d at 322. In Smith, plaintiffs, who were private

citizens, initiated original actions in this court, seeking discipline of an attorney and

a judge pursuant to R.C. 4705.02. We granted defendants' motions to dismiss

because plaintiffs had failed to comply with the procedures in Gov.Bar R. V. We

further declared that R.C. 4705.02, which purported to create original jurisdiction

in this court, the courts of appeals, and the courts of common pleas over attorney

disciplinary matters, to be "of no force and effect with regard to our jurisdiction

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over the discipline of attorneys." Id. at 266, 75 O.O.2d at 319-320, 348 N.E.2d at

322. We further declared, "[o]ur authority is exclusive and absolute. A disciplinary

proceeding may be initiated only by compliance with Gov. [Bar] R. V." Id. at 266,

75 O.O. 2d at 320, 348 N.E.2d at 322.

{¶ 20} R.C. 2305.28, if construed as urged by appellee, would be a more

subtle but no less invalid intrusion upon our authority. The existence and nature of

a privilege for disciplinary complaints affects the viability of the process. If, for

example, the General Assembly had prohibited private citizens, non-clients, or non-

parties from filing any complaint against an attorney, it would be a clear violation

of the judiciary's plenary power over attorney discipline. The difference between

this hypothetical and the weakening of the privilege is one of degree and not of

kind.

{¶ 21} A closely analogous case decided by a sister state bolsters our

reasoning. In Ramstead v. Morgan (1959), 219 Ore. 383, 347 P.2d 594, the

Supreme Court of Oregon held that statements made against an attorney in a

grievance proceeding, which it termed "quasi-judicial," are absolutely privileged

against libel and slander actions. In Ramstead, just as in the instant case, a state

statute purported to grant a qualified privilege to persons making complaints as to

the conduct of an attorney. The Oregon Supreme Court declared the statute void

as a serious and unconstitutional incursion into its own exclusive domain. Id. at

399-400, 347 P.2d at 601-602. We share the Oregon court's conviction regarding

the gravity of a legislative alteration of the privilege.

{¶ 22} For these reasons, we hold that: (1) a complaint filed with the

grievance committee of a local bar association is part of a judicial proceeding; (2)

a statement made in the course of an attorney disciplinary proceeding enjoys an

absolute privilege against a civil action based thereon as long as the statement bears

some reasonable relation to the proceeding; and (3) R.C. 2305.28 does not apply to

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attorney disciplinary proceedings held under the authority of the Supreme Court of

Ohio. The judgment of the court of appeals is reversed.

Judgment reversed.

A.W. SWEENEY, WRIGHT, RESNICK and F.E. SWEENEY, JJ., concur.

DOUGLAS and PFEIFER, JJ., dissent.

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PFEIFER, J., dissenting.

{¶ 23} In the business of practicing law, reputation is a successful attorney's

greatest asset. To leave something of such value open to the prey of the malicious

makes little sense.

{¶ 24} Access to Ohio's courts is guaranteed to all Ohioans. "***[E]very

person, for an injury done him in his land, goods, person or reputation, shall have

remedy by due course of law***." (Emphasis added.) Section 16, Article I, Ohio

Constitution. The Constitution does not exclude attorneys from this guarantee. By

establishing an absolute privilege for those who report attorneys to bar associations,

we relegate lawyers to second-class citizenship -- permitted to protect the reputation

of others, but not their own.

{¶ 25} The majority overestimates the added deterrent effect that the

absolute privilege will have on lawyers who are inclined to file retaliatory lawsuits

against those who report them to the bar associations. Under current provisions of

the law, attorneys are unlikely to engage in malicious, retaliatory conduct because

of the ramifications of Civ. R. 11. An attorney filing a groundless suit may also be

subject to disciplinary action: "*** [A] lawyer shall not *** [f]ile a suit, assert a

position, conduct a defense ***when he knows or when it is obvious that such

action would serve merely to harrass or maliciously injure another." DR 7-

102(A)(1).

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{¶ 26} Extension of absolute immunity amounts to an unneeded,

unconstitutional shield which obstructs the ability of an innocent, conscientious

attorney to protect his or her reputation.

DOUGLAS, J., concurs in the foregoing dissenting opinion.

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