Baggott v. Hughes

• Decision Date: 23 March 1973
• Docket Number: No. 22147,22147
• Citation: 296 N.E.2d 696,34 Ohio Misc. 63
• Parties: , 63 O.O.2d 252 BAGGOTT v. HUGHES.
• Court: Ohio Court of Common Pleas

Page 63

34 Ohio Misc. 63

296 N.E.2d 696, 63 O.O.2d 252

BAGGOTT v. HUGHES.

No. 22147.

Court of Common Pleas of Ohio, Clinton County.

March 23, 1973.

Dennis & Cartwright, Wilmington, for plaintiff.

William J. Davis, Columbus, for defendant.

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

HOTTLE, Judge.

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 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 (108 Neb. 652, 189 N.W. 301).'

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 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, 195 N.W.2d, at 508.)

The underlying reason for such absolute privilege is stated in the Ramstead opinion at 219 Or. at 400, 401, 347 P.2d at 602, 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 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. 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. 608, 466 P.2d 441, states:

'Communications regarding alleged unethical conduct of a member of the bar to the Chief Justice of Hawaii or to the committee established pursuant to Rule 16 of the Rules of the Supreme Court of the State of Hawaii or to 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 requirment that must be served is the protection of the public from unethical practices of attorneys.'

Ramstead at 219 Or. at 391, 347 P.2d at 598, 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, 168 N.E.2d 425, 11 Ohio Op.2d 439, Hdnts. 7, 8; Pope v. Pollock, 21 Wkly.L.B. 203; Wilson v. Whitacre, 4 Ohio Cir.Ct. 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 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...