296 N.E.2d 696

BAGGOTT v. HUGHES.

No. 22147Court of Common Pleas, Clinton County.
Decided March 23, 1973.

Libel — Attorney and client — False and defamatory communication about attorney made to state bar association — Absolutely privileged, when.

There is an absolute privilege in Ohio to communicate false and defamatory statements about an attorney to the Ohio State Bar Association, if such statements are relevant to the judicial function to be performed.

Messrs. Dennis Cartwright, for plaintiff.

Mr. William J. Davis, for defendant.

Mr. John R. Welch, for Ohio State Bar Association, amicus curiae.

HOTTLE, J.

The question presented here is of first impression, as far as can be ascertained from reported decisions, in the state of Ohio. It is as follows: Does an attorney-at-law have a cause of action against a former client who the attorney alleges falsely and maliciously libels, defames, and impugns his honor and integrity by her letter delivered to the Ohio State Bar Association. It is not necessary to repeat the contents of such letter, and the court need only state that, if untrue and malicious, the statements contained therein did libel, defame, and impugn the honor and integrity of the plaintiff. The court understands that the investigation by the Ohio State Bar Association into defendant’s letter revealed no professional misconduct on the part of plaintiff.

Other courts have spoken on this question, and in particular, the Nebraska Supreme Court in Sinnett v. Albert (1972), 188 Neb. 176, 195 N.W.2d 506. The 2nd, 3rd, and 4th paragraphs of the courts syllabus state as follows:

“2. The rule of absolute privilege is applicable not

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only to judicial proceedings but to quasi-judicial proceedings as well.

“3. The relevancy of the defamatory matter is not a technical legal relevancy but instead a general frame of reference and relationship to the subject matter of the action.

“4. There is an absolute privilege to publish false and defamatory matter in a complaint made to the committee on inquiry of the Nebraska State Bar Association regarding the alleged misconduct of an attorney where the defamatory matter has some relation thereto.”

At 195 N.W.2d 508, the opinion states:

“As to judicial proceedings, it is not necessary that the defamatory matter be relevant or pertinent to any issue before the court. It is necessary only that it have some relevance to the judicial function which is being performed. See Reller v Ankeny, 160 Neb. 47, 68 N.W.2d 686. Even in a quasi-judicial proceeding, the relevancy of the defamatory matter is not a technical legal relevancy but instead a general frame of reference and relationship to the subject matter of the action Fenning v. S. G. Holding Corp., 47 N. J. Super. 110, 135 A.2d 346; Shumway v. Warrick, supra.

The opinion cites the landmark case of Ramstead v. Morgan of the Supreme Court of Oregon, 219 Or. 383, 347 P.2d 594, in which the first through the fourth paragraphs of the syllabus state:

“1. Absolute immunity attaches to statements made in course of or incident to a judicial or quasi-judicial proceeding.

“2. Statements made before various administrative boards are recognized as absolutely privileged.

“3. Under rule attaching an absolute privilege to statements made before various administrative bodies, proceedings may be regarded as quasi-judicial in character in spite of fact that body before whom proceedings are conducted is not a creature of legislature.

“4. Absolute privilege attached to former client’s statements in a letter to chairman of county grievance committee

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of State Bar respecting alleged misconduct of an attorney, notwithstanding fact that complaints made did not eventuate in a formal hearing before a committee.”

The case is the subject of an annotation in 77 A. L. R. 2d 481, and the abstract of the 10th headnote reads:

“10. The rule of absolute privilege extends, not only to a letter complaining of an attorney and setting in motion the bar’s trial procedure in which the writer is called before the trial committee to testify as a witness, but also to relevant statements made in a complaint designed to initiate such quasi-judicial action.”

The opinion states at p. 490 (under headnote 10):

“If the defendant’s letter had set in motion the bar’s trial procedure and he had been called before the trial committee to testify as a witness the quasi- judicial character of the proceeding would warrant the application of the rule of absolute privilege. Kimball v. Ryan (1936), 283 Ill. App. 456 Fenning v. S. G. Holding Corp. (1957), 47 N. J. Super 110, 135 A.2d 346; Higgins v. Williams Pocahontas Coal Co. (1927), 103 W. Va. 504, 138 S.E. 112.” (See Sinnett, supra, at 508.)

The underlying reason for such absolute privilege is stated in the Ramstead opinion at 219 Or. at 400, 401, 77 A. L. R. 2d at 492, 493, as follows:

“The courts can be fully effective in serving the public only if they can be seen by the people as a symbol of impartial judgment. To maintain this necessary symbolism it is essential that there be no doubt, even in the mind of the most suspicious, of that impartiality and of the integrity of those entrusted with the legal machinery which insures it. We regard it as important, therefore, that there should be no impediment to free criticism of the bench and bar lest it be interpreted by the public as a veil to hide judicial vices. The trial judge in the present case, speaking from the bench, aptly expresses the view we take:

“`Whatever may be the hardship on a particular attorney in a particular case, proper administration of justice requires that there be a forum in which a client who is unlearned in the law may state a complaint, real or supposed,

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so that it may be investigated, and, if necessary, judicially determined.

“`If the privilege were removed from such communication the persons who believed themselves aggrieved by their lawyers would have, in addition to any imaginary doubt they might have about the fairness of the hearing before a tribunal of lawyers, would also have the threat that if they failed to prove their complaint they would be faced by the risk and expense of defending a damage action brought by the lawyer complained against.

“`Such a fear on the part of the general public, whether it was groundless or not, would have the effect of impeding and restricting the necessary function of the bar in policing its own ranks.

“`Therefore, unless it appears from the face of the pleadings that the communication complained of exceeded the legitimate purpose of the intent to state a complaint in the proper forum, it is absolutely privileged, and there can be no trial of the underlying motives of the defendant in instituting the complaint.'”

The idea is also expressed in Spriggs v. The Cheyenne Newspapers, 63 Wyo. 416, 182 P.2d 801, 815:

In Sinnett, at 195 N.W.2d at 509, the opinion states:

“(6) People have a right to complain about professional misconduct of an attorney to the properly constituted authorities. The exercise of that right should not be discouraged by fear on the part of the complainant that he may have to defend a lawsuit for defamation by anyone who deems himself defamed by relevant statements made in the complaint. Reasonable demands of sound public policy require the imposition of absolute privilege. Where the defamatory matter has some relation to the proceeding, that shield of immunity defends the complainant not only from the attorney complained against but against any other person who might have been defamed.”

The syllabus of the court in Wong v. Schorr, 51 Haw., 466 P.2d 441, states:

“Communications regarding alleged unethical conduct of a member of the bar to the Chief Justice of Hawaii

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or to the committee established pursuant to Rule 16 of the Rules of the Supreme Court of the State of Hawaii or the Committee on Legal Ethics of the Bar Association of Hawaii are absolutely privileged.”

In 51 Haw. at 611, 466 P.2d at 443, the court stated its basic reason: “* * * [B]ecause of the overriding requirement that must be served in the protection of the public from unethical practices of attorneys.”

Ramstead at 219 Or. at 391, 77 A. L. R. 2d at 488 states:

“The case of Lilley v. Roney et al. (1892), 61 Q. B. D. 727, is directly in point. In that case the defendants sent a letter of complaint to the Incorporated Law Society, charging plaintiff, a solicitor, with unprofessional conduct. The complaint was found to be groundless, whereupon plaintiff brought an action of libel against the defendants for the statements made in the original letter of complaint and in the affidavit which was filed with the letter. The action was dismissed by the trial court on the ground that the alleged libelous publication was made in the course of a judicial proceeding and was, therefore, absolutely privileged. In affirming the dismissal of the action the appellate court said:

“`The claim ought to have been for maliciously instituting proceedings, not for libel. The letter with affidavit is the form given for setting in motion what are admittedly judicial proceedings. It is true that the burden of proving want of reasonable and probable cause will thereby be thrown upon the plaintiff; but if the proceedings are shown to have been instituted without reasonable or probable cause he would be entitled to damages. I think leave ought to be given to the plaintiff to amend his pleadings to this effect if he wishes to do so.’ 61 L. J. Q. B. at page 727.” See 35 O. J. 2d Sec. 2 Mal. Pros.

Edgington v. Glassmeyer, 11 Ohio Op. 2d 439, Hdnts. 7, 8 Pope v. Pollock, 21 Wkly L. B. 203; Wilson v. Whitacre, 4 C. C. 15 at 21.

Missouri apparently does not extend privilege in a situation in which malice exists. Lee v. Fuetterer Battery Supplies Co., 323 Mo. 1204, 23 S.W.2d 45, cited in 50

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American Jurisprudence 2d 748, Libel and Slander, Section 235.

The judiciary is the governmental branch controlling discipline of those practicing law. Paragraph 5 of the syllabus of Ramstead v. Morgan, supra, reads:

“5. Statute in so far as it provides that no person who in good faith has made a complaint as to conduct of an attorney or has given information or testimony relative to a proposed or pending proceeding for misconduct against an attorney shall not be answerable for any act in any proceeding except for perjury must be construed as purporting to protect attorneys from those who cannot prove that their actions in presenting complaint charging misconduct on part of attorneys were prompted by justifiable motive, and as so construed it must be deemed unconstitutional as constituting a serious incursion into exclusive domain of court, O.R.S. 9.550.”

Headnotes 11 and 14 of Ramstead at 77 A. L. R. 2d 482, 483 read:

“11. A statute providing that no person who `in good faith’ makes a complaint against an attorney to a grievance committee of the bar shall be answerable for such act in any proceeding, is, in so far as it limits, by the quoted phrase, the absolute privilege against a libel suit, an infringement upon the traditional function of the judiciary in disciplining members of the bar serving under it, and a violation of the separation of powers doctrine.”

“14. Whether denominated judicial or quasi-judicial, disciplinary proceedings against attorneys are carried on as one of the processes of the court.”

Article 4, Section 2(B), Ohio Constitution, reads, in part, as follows:

“The Supreme Court shall have original jurisdiction in the following: * * * (G) Admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law.”

Rule V(20), of the Supreme Court Rules for the Government of the Bar of Ohio, states, in part:

Proceedings Private; Exceptions. All proceedings and documents relating to complaints and hearings thereon

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and proceedings in connection therewith shall be private except * * *.” (The exceptions have no application here.)

Gov. R. V(3) provides for permissive referral by the board of commissioners to the legal ethics and professional conduct committee of the Ohio State Bar Association. Section 4 provides for investigations and further activity by the proper committee of the Ohio State Bar Association. In the instant case, the procedure fixed by rule has been followed.

Ohio case authority has stated that absolute privilege is limited rather strictly, but applies to “judicial proceedings in established courts of justice.” Bigelow v. Brumley, 138 Ohio St. 574, at 580, 583 (citing Liles v. Gaster, 42 Ohio St. 631 an Erie County Ins. Co. v. Crecelius, 122 Ohio St. 210.)

In Bigelow, supra, at page 579, the court said:

“Upon certain privileged occasions where there is a great enough public interest in encouraging uninhibited freedom of expression to require the sacrifice of the right of the individual to protect his reputation by civil suit, the law recognizes that false, defamatory matter may be published without civil liability, 1 Cooley on Torts (4 Ed.), 522, Section 151.

“Such privileged occasions have by long judicial history been divided into two classes — occasions absolutely privileged and those upon which the privilege is only a qualified one. The distinction between these two classes is that the absolute privilege protects the publisher of a false defamatory statement even though it is made with actual malice, in bad faith and with knowledge of its falsity; whereas the presence of such circumstances will defeat the assertion of a qualified privilege.”

A case dealing with admission to the Bar, Wilson v. Whitacre,
4 C. C. 15, presents the following situation and applies the law to it in its syllabus, as follows:

“A. Applied to the Supreme Court of this state, to be examined with a view to his admission to the Bar. Thereupon B., an attorney-at-law, addressed a letter to the clerk of said court containing a sealed communication, which he requested the clerk to hand to the court, which communication

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protested against the admission of A. to the Bar, and contained charges against him which, if true, showed that he was not of good character, but which if they were false, and were maliciously written and published, would entitle A, to recover damages of B, in an action for libel unless such communication so made was absolutely privileged. It was received and acted upon by the court, and A, was not allowed to present himself for examination unless he should show that such charges were unfounded. A. brought an action for libel against B. founded on such communication.

Held: That the Supreme Court on the question of the admission of persons to practice law acts in a judicial capacity and that a communication addressed to the court pertinent to the character of an applicant for admission to the Bar, and received and acted upon by the court like the testimony of witnesses in other cases or the commencement of a prosecution in a criminal case, is absolutely privileged as far as an action for libel or slander is concerned.”

The court stated at pages 20 and 21 of the opinion:

“Is such communication, when made, absolutely privileged? We concede that this doctrine ought not to be extended by the courts. One who falsely and maliciously accuses another of crime, should suffer the penalty, unless he is shielded by another principle of law, viz: that public policy demands that those who so act shall be exempt from an action for libel or slander for so doing, leaving them otherwise responsible for their conduct, after considerable hesitation, we are of the opinion that the question should be answered in the affirmative, that a case like this is clearly within the spirit, if not the letter, of the established rule. The court acting in a judicial capacity, and in a matter in regard to which it had complete jurisdiction, with inherent power to settle the question, by hearing testimony or otherwise, as to the character of an applicant for admission to the Bar, receives from a lawyer a communication relevant to that question, and accepts and acts upon it. This state of fact being shown or admitted in the case, we think made the communication an absolutely privileged one.”

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A case dealing with disbarment proceedings wherein the written communication was not sealed is Preusser v. Faulhaber,
15 C. C. (N.S.) 110. Paragraphs 2 and 3 of the syllabus state as follows:

“2. Where in an action for libel the charges bear internal evidence of having been filed in a disbarment proceeding, and it is not alleged that such proceeding was a mere cloak maliciously employed to make the publication a privileged one, the alleged libel is not actionable.

“3. While the more delicate method of bringing charges against an attorney to the attention of a judge, preliminary to a proceeding for disbarment, is to seal the charges before depositing them with the clerk, failure to seal such charges does not render the party filing them liable for damages in publishing said charges to the clerk.”

The court said at page 112:

“It might be more delicate if the accusation so deposited with the clerk were left sealed for delivery to the judge or judges, as in the case of Wilson v. Whitacre, 4 C. C., 15; but it is neither necessary nor desirable that such charges should be whispered orally into the ear of a judge who is called to act judicially upon them.”

Meyer v. Parr, 69 Ohio App. 344, distinguished Wilson an Preusser at page 352. Meyer dealt with the question of an absolute privilege extending to administrative tribunals (there, Ohio State Board of Embalmers and Funeral Directors) and said at page 350:

“So we conclude that there is nothing in the statute indicating a legislative intent to confer judicial power upon this board, and that the proceedings before it cannot be placed in the category of judicial proceedings, the participants in which are protected by an absolute exemption from liability based on communications therein relevant to the inquiry.”

The real decision facing this court is whether or not Ohio should follow the policy of absolute privilege as delineated in the above decisions.

The Bar of Ohio and the Supreme Court of Ohio have attempted for several years, with great emphasis in recent years, to upgrade the standards and the integrity of the

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legal profession. Those wishing to enter the profession, and those having been admitted to practice and continuing as members of the profession, have been asked to adhere to rigid and high standards. Having asked so much of an individual practitioner, it becomes clear that questioning the logic of the principle used to protect others not under any compunction of conscience or professional supervision, by their false, and/or malicious accusations to libel, defame and impugn a member of the profession, has merit. To hold that there is an absolute privilege is to destroy, in part, an individual and his or her lifetime of adherence to the standards required by the Bar Association, while to permit suits might curtail legitimate complaints against erring members of the Bar. The courts whose opinions are quoted above have chosen to exact a price from members of the profession by requiring them to suffer false attacks upon them as a requisite for the opportunity to follow the profession of law.

On the premise already stated, this court holds that even though defendant’s communication be libel per se (which is not here decided, but assumed for purposes of argument) that plaintiff, a member of the Bar, has suffered injury without redressible damage.

Investigations and proceedings on complaints as to an attorney’s professional conduct is a judicial function in Ohio. Article 4, Section 2(B)(1)(g), Ohio Constitution; Rule V (3) (4), Supreme Court Rules for Government of the Bar of Ohio. The communication herein being relevant to the judicial function to be performed, the constitutional authorization having been implemented, the procedure provided by the Ohio Supreme Court having been followed, and the pleadings herein not revealing any deviation therefrom, or revealing any other purpose of intent other than to make a complaint in the proper forum, defendant’s communication is held to be absolutely privileged.

Judgment for defendant.

HOTTLE, J., of the Court of Common Pleas of Highland County, sitting for BARNS, J.

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