establishing an absolute privilege protecting the republi-eation of defamatory statements in any written pleading that has “some reasonable relation to the judicial proceeding in which it appears”
How later courts described this case
- establishing an absolute privilege protecting the republi-eation of defamatory statements in any written pleading that has “some reasonable relation to the judicial proceeding in which it appears”
- holding that statements in a written pleading are absolutely privileged
- "The late Dean Prosser once noted that '[t]he defense of privilege, or immunity, in cases of defamation does not differ essentially from the privileges, such as those of self-defense, protection of property, or legal authority, available as to assault and battery. It rests upon the same idea, that conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation.’ "
- explaining Ohio’s litigation privilege
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring in judgment. I agree that the statements in the RICO pleading are privileged as a matter of law and that complaints predicated thereon are insufficient as a matter of law. Accordingly, the trial court below properly dismissed the within action under Civ. R. 12(B)(6) for “failure to state a claim upon which relief can be granted.” However, I do not believe it appropriate to adopt a standard for such privilege which is absolute. I, therefore, concur separately in judgment only.
The majority assumes the most difficult possible case of “the evil disposed and the malignant slanderer,” Erie County Farmers’ Ins. Co. v. Crecelius (1930), 122 Ohio St. 210, 215 , so as to justify the imposition of absolute privilege on all such legal writings. I am unwilling to go so far for several reasons, the most immediately recognizable being that we apparently do not have before us the case of one who intentionally and/or with actual malice uttered such statements. If the court were confronted with such a case, involving “the evil disposed and the malignant slanderer,” not one merely reckless or negligent, then it would seem to run counter to the best interests of the legal profession to shield such utterance in the name of privilege.
Furthermore, such a narrow exception would not create “a multitude of slander and libel suits” nor “deter an honest suitor from pursuing his legal remedy in a court of justice.” Id. Instead, the orderly^administration of justice would be protected, while one who purposely and in bad faith takes advantage of his privilege could be brought to answer for such professional malfunction. Also, Ohio’s Code of Professional Responsibility seems to uphold this view. DR 7-102(A)(5) states: “In his representation of a client, a lawyer shall not: * * * Knowingly make a false statement of law or fact.”
Accordingly, I concur in judgment only.