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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3665" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/12/e-commerce-300x195.jpg" alt="" width="300" height="195">A lawyer representing an eBay seller in a dispute with the seller&rsquo;s trading agents drew&nbsp;a defamation claim from the agents.&nbsp;&nbsp;But the case had a happy ending for the lawyer, as the New Jersey court of appeals <a href="http://filehost.thompsonhine.com/uploads/Xcalibur_v_Loiacono_107a.pdf">held last month</a> that&nbsp;two letters the lawyer wrote to eBay were protected by the Garden State&rsquo;s&nbsp;broad litigation privilege.&nbsp; (H/t to Pete Gallagher, blogging over at <a href="https://petes-take.blog/" target="_blank" rel="noopener noreferrer">Pete&rsquo;s Take</a>.)
The case spotlights the scope of the privilege, a&nbsp;&ldquo;<a href="http://www.hofstralawreview.org/wp-content/uploads/2016/03/DD.5.Hill_.final1_.pdf">backbone&rdquo; of&nbsp;the American judicial system</a>, widely adopted in some form throughout the U.S., and enshrined in &sect; 588 of the Restatement of Torts (Second).
&ldquo;Dear eBay personnel...&rdquo;
The underlying case started out in small claims court, where&nbsp;the two trading agents sued the seller.&nbsp;&nbsp;The seller, represented by Lawyer, roared back with a multi-prong counterclaim that sought treble damages under the state consumer fraud act, plus punitive and other&nbsp;damages.&nbsp; The counterclaim, which took the case out of small claims court,&nbsp;was based on an agreement for the trading agents to help seller sell goods on eBay.&nbsp;&nbsp;The underlying case later settled.
But during the course of the underlying case, Lawyer wrote two identical letters to eBay, which was not involved as a party.&nbsp; The letters were not addressed to anyone in particular at eBay.&nbsp; They said that: seller had hired the trading agents based&nbsp;on eBay&rsquo;s representations regarding&nbsp;its trading assistant program; &nbsp;the trading agents had&nbsp;refused to pay money due to the seller;&nbsp;the trading agents &ldquo;likely&rdquo; never had a fidelity bond with eBay; and&nbsp;that eBay should&nbsp;suspend them from its program.&nbsp; Lawyer also asked how eBay intended to &ldquo;handle this matter.&rdquo;
In their later complaint&nbsp;against Lawyer, the trading agents alleged claims including defamation and&nbsp;interference with contract, based on the letters.&nbsp; The trial court dismissed the case, and the appellate division, in its unpublished opinion, affirmed.
Explore the truth &mdash; no recrimination
The privilege &ldquo;provides immunity from suit to permit unfettered expression&rdquo; in connection with litigation, noted the court of appeals.&nbsp; Its contours under New Jersey law&nbsp;apply broadly to give absolute protection to:
<ul>
<li>any communication;</li>
<li>made in judicial or quasi-judicial proceedings;</li>
<li>by litigants or other participants;</li>
<li>to achieve the objects of the litigation;</li>
<li>where the communication has some connection or logical relation to the action.</li>
</ul>
Citing long-standing precedent, the privilege applies, said the court, even to statements spoken maliciously; even if connected to a not-yet-pending action;&nbsp;and even if addressed to a non-party to the litigation.
Here, the court said, Lawyer&rsquo;s detailed letters were related to and relevant to the underlying case between Lawyer&rsquo;s client and the trading agents.&nbsp; They were in line &ldquo;with the type of inquiry deemed ... to be necessary to a thorough and searching investigation of the truth, and therefore, essential to the achievement of the objects of litigation.&rdquo;&nbsp; EBay&rsquo;s response could have led to a claim against eBay; or could have prompted eBay to investigate the trading agents&rsquo; practices, possibly leading to additional support for seller&rsquo;s claims against them.
The Lawyer&rsquo;s statements, held the court,&nbsp;were well within the scope of the absolute privilege and its policy to &ldquo;explore the truth of a matter without fear of recrimination.&rdquo;
But don&rsquo;t go wild
The litigation privilege is obviously good for lawyers and allows us broad scope to make statements relevant to litigation.&nbsp; But a&nbsp;caveat:&nbsp; as always, state wrinkles may apply.&nbsp;&nbsp;(See this <a href="http://www.hofstralawreview.org/wp-content/uploads/2016/03/DD.5.Hill_.final1_.pdf">2015 law review article</a>,&nbsp;at n. 14, commenting about Georgia and Louisiana, for instance.)&nbsp; And you should be aware that for disciplinary purposes, your motivation counts.&nbsp; In representing a client, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons.html">Model Rule 4.4</a> bars using means&nbsp;that have no substantial purpose other than to embarrass, delay or burden a third person.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Lawyer’s “Dear eBay” letters come under litigation privilege, nixing defamation case