The Florida Litigation Privilege and Pre-Suit Communications
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. March 9, 2016
By Gina P. Villar and Josh M. Rubens
Florida has long recognized a “litigation privilege” affording absolute immunity for communications made during the course of judicial proceedings, including statements in written pleadings and motions and at hearings and depositions, unless the statements bear no relation to the proceeding or are fraudulently made for the sole purpose of inducing settlement. The privilege initially was created to protect litigants, lawyers, and witnesses from defamation claims. However, over time, Florida courts have expanded the privilege to additional tort claims, including fraud and tortious interference.
Florida courts have also been faced with an important issue testing the boundaries of the privilege: whether, and to what extent, the litigation privilege applies to “pre-suit” communications. The issue was presented to the Fourth District Court of Appeal for the first time in Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983), where a draft complaint, which allegedly contained a false statement, was presented to opposing counsel prior as a settlement tactic prior to litigation. The court held that a “qualified privilege” applies to certain pre-suit communications, such as communications that are mandated by statute, administrative regulation, or by contract. The court noted that while not all pre-suit settlement communications satisfy that standard, the privilege should cover those communications because public policy favors the resolution of disputes outside of court. The court expressed some limitation on the privilege, holding that statements made during such pre-suit communications would not be protected if the injured party can prove “express malice or malice in fact.”
The law regarding the qualified litigation privilege for pre-suit communications is still developing. For example, in 2007, the U.S. District Court for the Middle District of Florida held that Florida law was unsettled on the issue of whether the litigation privilege applies to pre-suit communications that are not mandated by statute or contract. In that case, the pre-suit communications involved letters sent to plaintiffs from a defendant holding itself out as a creditor in foreclosure proceedings. Plaintiffs alleged these communications formed a claim under the Florida Consumer Collection Practices Act or Florida Deceptive and Unfair Trade Practices Act. The court held it was “unprepared to extend the litigation privilege to pre-suit communications, especially where, as here, the parties agree that the law does not require that these notices be sent.”
In 2009, the U.S. District Court for the Southern District of Florida declined to hold that certain pre-suit demand letters were privileged. The court ruled that plaintiffs “sufficiently raised a question of fact as to whether the demand letters were truly intended as a condition precedent to filing suit” as required by Florida’s Civil Theft statute, or if they were “sent merely as a scare tactic” to induce settlement. The court held that the law firm’s alleged good faith basis for sending the demand letters was a question of fact to be resolved by the jury.
While the law relating to whether and to what extent pre-suit communications are privileged is evolving, attorneys should be mindful of statements made or actions taken prior to filing suit. It is possible that even if the communication is required under a statute or contract, attorneys and their clients may not be protected from liability by the qualified litigation privilege.
Cases relied upon:
Axelrod v. Califano, 357 So. 2d 1048 (Fla. 1st DCA 1978)
Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004)
Kelly v. Palmer, Reifler & Associates, P.A., 681 F. Supp. 2d 1356 (S.D. Fla. 2009)
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606 (Fla.1994)
McCullough v. Kubiak, 158 So. 3d 739 (Fla. 4th DCA 2015)
Myers v. Hodges, 44 So. 357 (Fla. 1907)
Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323 (Fla. 4th DCA 1983)
Trent v. Mortgage Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356 (M.D. Fla. 2007)