Oh, Rats!!! Psssft……Can’t Sue the Attorney for Defamation

An attorney who sent a letter to an employer accusing an employee of stabbing an inflatable rat cannot be sued for defamation because the letter was sent to a potential litigant, an Illinois appellate court found. The bar applies even if the attorney did not investigate whether the accusation was true or false.

Kevin Atkinson sued attorney Frank Marco for defamation and making statements that placed Atkinson in a “false light.” The attorney was representing a union that was picketing at a job site. The union also displayed a large inflatable rat at the site. Sometime during the picketing, someone stabbed the rat.

Marco sent a letter to Atkinson’s employer stating that he “has destroyed and damaged property belonging to our Local” and stated that the union intends “on holding the Dobbins Group responsible for the property damage.” No lawsuit was ever filed and a third party paid for the damage to the rat.

The case was dismissed by the trial court because it concluded that letters written by attorneys to potential adversaries prior to any legal proceeding being filed are absolutely privileged. The appellate court agreed.

“An attorney must be at liberty to candidly and zealously represent his client in communications to potential opposing parties in litigation or other proceedings without the specter of civil liability for his statements clouding his efforts,” the appellate court wrote. “The privilege affords complete immunity, irrespective of the attorney’s knowledge of the statement’s falsity or the attorney’s motives in publishing the defamatory matter.”

As a result, the court said, “An attorney is not required to undertake an investigation or wait until statements made by their [sic] clients are proven true prior to communicating with potential litigants in order to be protected under the privilege.” The only test of whether the privilege applies is the extent to which the communication pertains to proposed litigation or other proceedings.

Atkinson v. Ralph Affronti, Edward Juergensen, Frank O’Lone and Frank A. Marco, Ill. App. First Dist. No. 05-3992, issued Dec. 22, 2006.