Maulsby v. Reifsnider

• Citation: 69 Md. 143,14 A. 505
• Parties: MAULSBY v. REIFSNIDER.
• Decision Date: 13 June 1888
• Court: Court of Appeals of Maryland

14 A. 505
69 Md. 143

MAULSBY
v.
REIFSNIDER.

Court of Appeals of Maryland.

June 13, 1888.

Appeal from circuit court, Washington county.

Argued before STONE, BRYAN, IRVING, MCSHERRY, and ROBINSON, JJ.

H. Kyd Douglass, William Witzenbacker and William P. Maulsby, for appellant. Charles B. Roberts, H. H. Keedy and J. Clarence Lane, for appellee.

ROBINSON, J. This is a suit against an attorney at law for slander. The defendant pleads in bar of the action that the alleged defamatory words set out in the declaration were spoken by him in his capacity as counsel, in the trial of a cause in a court of justice. To this the plaintiff replied that the words thus spoken were not spoken in reference to said cause, and "had no reference to said action, or to any subject-matter involved in said action, or to any judicial inquiry which was going on, or being had in said action." To this replication the defendant demurred, and, in sustaining the demurrer, the court decided, as matter of law, that if the defamatory words were spoken by the defendant as counsel in the trial of a cause in a court of justice, the action could not be maintained, even though the plaintiff should prove that the words thus spoken were false, and were known to be false, by the defendant, and even though they were spoken maliciously, and even though they had no reference to said cause, or to any subject-matter, or to any judicial inquiry involved in said action in other words, the court decided that the privilege of counsel in the trial of a cause is an absolute and unqualified privilege, and although he is subject to the authority of the court for the abuse of this privilege, and may be punished for misbehavior or misconduct, he cannot be held liable in an action of slander brought by the person injured.

The question, which is thus presented for the first time for the decision of the court, is one of great importance, involving on the one hand the rights and privileges of counsel in the trial of causes in the discharge of a professional duty, and on the other the rights of the citizen whose character may have been maliciously and wantonly assailed. The case has been very fully and ably argued on both sides, and reference has been made to nearly all the decisions, both in England and in this country, on the subject. All agree that counsel are privileged and protected, to a certain extent at least, for defamatory words spoken in a judicial proceeding; and words thus spoken are not actionable which would in themselves be actionable, if spoken elsewhere. He is obliged, in the discharge of a professional duty, to prosecute and defend the most important rights and interests, the life it may be, or the liberty or the property of his client, and it is absolutely essential to the administration of justice that he should be allowed the widest latitude in commenting on the character, the conduct, and the motives of parties, and witnesses and other persons directly or remotely connected with the subject-matter in litigation. And to subject him to actions of slander by every one who may consider himself aggrieved,

14 A. 506

and to the costs and expenses of a harassing litigation, would be to fetter and restrain him in that open and fearless discharge of duty which he owes to his client, and which the demands of justice require. Not that the law means to say that one, because he is counsel in the trial of a cause, has the right, abstractedly considered, deliberately and maliciously to slander another, but it is the fear that if the rule were otherwise actions without number might be brought against counsel who had not spoken falsely and maliciously. It is better, therefore, to make the rule of law so large that counsel acting bona fide in the discharge of duty shall never be troubled, although, by making it so large, others who have acted mala fide and maliciously are included. The question whether words spoken by counsel were spoken maliciously or in good faith, are, and always will be, open questions, upon which opinion may differ, and counsel, however innocent, would be liable, if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege merely of counsel, but the privilege of clients, and the evil, if any, resulting from it, must be endured for the sake of the great good which is thereby secured. But this privilege is not an absolute and unqualified privilege, and cannot be extended beyond the reason and principles on which it is founded. The question, then, is, what is the extent and limit to this privilege? This can best be answered by a consideration of the cases in which it has been determined.

In the earliest of the leading cases on the subject, (Brook v. Montague, Cro. Jac. 90, decided in 1605, and argued by Lord COKE and YELVERTON,) it was held that this privilege protected counsel, provided the slanderous words spoken were relevant or pertinent to the matter. "But matter," said POPHAM, J., "not pertinent to the issue, or matter in question he need not deliver, for he is to discern in his discretion what he is to deliver and what not, and although it be false, he is excusable being pertinent to the matter." Subsequently, in the noted case of Hodgson v. Scarlett, (afterwards Lord Abinger,) 1 Barn. & Ald. 232, the rule laid down in Brook v. Montague, was expressly recognized and approved. This case was elaborately argued, and was decided after full consideration, each of the judges delivering his own views. Lord ELLENBOROUGH, while admitting that the language used by the defendant was too strong, and too much to say as between man and man, yet held that the action could not be maintained because the words spoken were pertinent to the issue. Justice BAYLEY said: "The rule seems to be correctly laid down in Brook v. Montague that a counselor hath a privilege to enforce anything which is informed unto him for his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false. No mischief will ensue in allowing the privilege to that extent." Mr. Justice ABBOTT: "The words were spoken in a course of judicial inquiry, and were relevant to the matter in issue. It would be impossible that justice could be well administered if counsel were to be questioned for the too great strength of their expressions." Mr. Justice HOLROYD, after referring to Buckley v. Wood, 4 Coke, 14, and Cutler v. Dixon, Id., says: "These cases show the privilege possessed by parties themselves; and from these authorities it appears that no action is maintainable against the party, nor, consequently, against counsel, who is in a similar situation, for words spoken in the course of justice, if they be fair comments upon the evidence, and be relevant to the matter in issue." Again, in Mackay v. Ford, 5 Hurl. & N. 790, POLLOCK, C. B., referring to the slanderous matter complained of, said: "The question is, was it relevant? I think it was, because it was pertinent to the question whether the agreement had been fully determined. The words were used by the defendant in the character of counsel in a court of justice, and, being relevant to the matter in hand, the speaking of them was justifiable." BRAMWELL, J.: "The words spoken having been pertinent to the question; * * * the rule must be absolute to enter a nonsuit." CHANNELL,

14 A. 507

B.: "The words in question were spoken in the course of a judicial proceeding in which they were not irrelevant." It thus appears that from the decision in Brook v. Montague, in 1605, to Mackay v. Ford, decided in 1860, a period of more than two hundred and fifty years, relevancy of the words spoken was considered essential to justify the privilege. And so the law was understood by all the most eminent commentators on the subject. Blackstone says: "A counselor is not answerable for any matter spoken relative to the cause in hand. * * * If it be impertinent to the cause in hand he is then liable to an action from the party injured." In Folk. Starkie, Stand. (4th Eng. Ed.) § 362, and Add. Torts, (Ed. 1870,) p. 934, note m, the privilege of counsel is limited expressly to words relative to the inquiry. We come now to Munster v. Lamb, 11 Q. B. Div. 583, decided in 1883, which is relied on in support of the ruling below. In that case it was held that no action will lie against counsel for slanderous words spoken with reference to and in the course of an inquiry before a judicial tribunal, although they were uttered maliciously, and without any justification, or even excuse, and from personal ill will towards the person slandered, arising out of a previously existing cause, and are irrelevant to every issue of fact contested before the court. BRETT, master of the rolls, said: "For the purpose of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously, that is to say, not with the object of doing something useful towards the defense of his client. I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill will or anger towards the prosecutor, arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered. Nevertheless, inasmuch as the words were uttered with reference to and in the course of the judicial inquiry which was going on, no action will lie against the defendant, however improper his behavior may have been. The rule is founded upon public policy. With regard to counsel the question of malice, bona fides, and relevancy cannot be raised. The only question is whether what is complained of has been said in the course of the administration of the law. If that be so, the case against counsel must be stopped at once. No action of any kind, no criminal prosecution, can be maintained against a defendant when it is...