Mohler v. Houston, 9876.

• Decision Date: 20 April 1976
• Docket Number: No. 9876.,9876.
• Parties: Richard Lee MOHLER, Appellant, v. Malcolm W. HOUSTON, Appellee.
• Court: D.C. Court of Appeals

356 A.2d 646

Richard Lee MOHLER, Appellant, v. Malcolm W. HOUSTON, Appellee.

No. 9876.

District of Columbia Court of Appeals.

Submitted March 24, 1976.

Decided April 20, 1976.

D. Carroll McGean, Upper Marlboro, Md., for appellant.

Reid C. Tait, James C. Gregg and Hugh Lynch, Jr., Washington, D. C., were on the brief for appellee.

Before GALLAGHER, YEAGLEY and MACK, Associate Judges.

PER CURIAM:

This appeal from the entry of summary judgment in favor of the defendant in a suit for defamation was submitted for decision upon the briefs of the parties and the record. Appellee is the attorney for appellant's former wife, and the alleged libel was contained in a brief filed by appellee on behalf of the wife on appeal to this court in a prior domestic relations action, Mohler v. Mohler, D.C.App., 302 A.2d 737 (1973). The trial court granted defendant's summary judgment motion after finding, upon review of the record of the proceeding in which the offending brief was filed, that the alleged libel was made in the course of a judicial proceeding and was relevant thereto. We affirm.

An attorney in this jurisdiction is protected by an absolute privilege to publish false and defamatory matter of another during the course and as a part of a judicial proceeding in which he or she participates as counsel, as long as it has some relation to the proceeding. The communication need not be relevant in the legal sense; the term is very liberally construed.

[S]tatements in pleadings and affidavits are absolutely privileged if they have enough appearance of connection with the case in which they are filed so that a reasonable man might think them relevant. They need not be relevant in any strict sense. [Brown v. Shimabukuro, 73 App.D.C. 194, 195, 118 F.2d 17, 18 (1941).]

See also Geier v. Jordan, D.C.Mun.App., 107 A.2d 440 (1954); United States v. Hurt, (D.C.Cir., No. 72-2229, March 8, 1976, slip op. at 9-10); Young v. Young, 57 App.D.C. 157, 18 F.2d 807 (1927); Williams v. Williams, 169 F.Supp. 860 (D.D.C.1958); Restatement of Torts § 586 (1938). The question of relevance is a question of law for the court to determine. Young v. Young, supra, 57 App.D.C. at 158, 18 F.2d at 808.

The allegedly defamatory portion of the appellate brief consists of an almost verbatim repetition of statements contained in a pleading filed by the wife in the trial court at an earlier state of the same judicial proceeding. The husband had filed a motion seeking to modify the financial and custody terms of a decree entered by the Domestic Relations Branch of the District of Columbia Court of General Sessions;¹ the wife's alleged misconduct was one of the asserted grounds for the motion. In response, first in the Opposition to the Motion to Modify and then in the brief urging affirmance filed by appellee...