Moore v. Smith

• Decision Date: 20 April 1978
• Docket Number: No. 44632,44632
• Citation: 578 P.2d 26,89 Wn.2d 932
• Parties: Lawrence W. MOORE, Respondent, v. Lyle SMITH and Jane Doe Smith, husband and wife, Norman S. Favre and Jane Doe Favre, husband and wife, and James A. Barrett and Jane Doe Barrett, husband and wife, and the City of Tacoma, a Municipal Corporation, Appellants.
• Court: Washington Supreme Court

Page 932

89 Wn.2d 932

578 P.2d 26

Lawrence W. MOORE, Respondent, v. Lyle SMITH and Jane Doe Smith, husband and wife, Norman S Favre and Jane Doe Favre, husband and wife, and James A Barrett and Jane Doe Barrett, husband and wife, and the City of Tacoma, a Municipal Corporation, Appellants.

No. 44632.

Supreme Court of Washington,En Banc.

April 20, 1978.

Reed, McClure, Moceri & Thonn, William Hickman, John W. Rankin, Jr., Seattle, for appellants.

Neil J. Hoff, J. Bruce Burns, Tacoma, for respondent.

HAMILTON, Justice.

Lawrence Moore, attorney and respondent, brought suit against the City of Tacoma, Tacoma Police Chief Lyle Smith, and two police officers, alleging defamation of professional reputation, false arrest, and malicious prosecution. The trial resulted in a general verdict in favor of Moore. All defendants appeal assigning error to various rulings of the trial court. They urge: (1) the communication which forms the basis of the defamation action is absolutely privileged; (2) the court erred in admitting certain testimony regarding the State Bar Association disciplinary process; (3) the court erred in excluding an exhibit which contained statements relating to Moore's reputation; (4) a new trial should have been granted because Moore's attorney revealed his status as a governor of the Bar Association to the jury; (5) there was insufficient evidence of malicious prosecution; and (6) the damage instruction was erroneous. We have considered each of these issues and affirm.

The facts in support of Moore's claims are somewhat complex and require detailed discussion. The testimony established that on February 2, 1974, respondent Moore received a telephone call from a former client who requested that Moore come to a Tacoma residence where a police investigation was underway. Moore proceeded to the residence and on arrival observed two police officers as well as approximately six other persons. Perceiving his duty as an attorney to require that he determine the nature of the police activity in order to safeguard his client's rights, Moore approached the house and confronted the officers. One officer indicated that they were looking for a Jerry Dupont. Moore then asked whether the officers had a search warrant for the premises. The officers stated they did not need a warrant and after some further discussion continued questioning the occupants of the house, asking for identification evidently in an effort to locate Dupont. During this process it came to the officers' attention that a person named Albert Turner, for whom they believed an arrest warrant was outstanding, was present. A heated discussion developed between an officer and yet another occupant of the house when Turner was asked for identification. One officer followed the owner of the house out through the back door and when he attempted to reenter the house, he was told by Moore to use the front door. At this point an initial "threat" of some sort was made by the officer directed toward Moore; however, as requested, the officer proceeded around to the front of the house. The arrest warrant for Turner was then verified, and he was placed in custody. Since the officers still had not located Dupont, they asked for and obtained consent for a single officer to enter and search the residence.

The testimony regarding the course of events from this point forward is less precise. The witnesses are in agreement that police sergeant Favre, one of the defendants, arrived on the scene. He was initially confronted by Moore, told he could not enter and that only one officer at a time was permitted entry. Moore explained he would contact the officer who was inside the residence. Sergeant Favre testified he was concerned for the officer's safety, observed a disturbance inside the house, and thus ordered Moore under arrest for interfering with a police officer. Moore was searched, handcuffed, and placed in a police vehicle.

The criminal charge of interfering with a police officer came to trial and resulted in an acquittal. Two days after the original incident, however, and prior to resolution of the criminal charge, Chief Smith sent a letter to the Tacoma-Pierce County Bar Association filing a formal complaint concerning Moore's activities and alleging unprofessional conduct. The Washington State Bar Association then investigated the complaint and did not take disciplinary action against Moore.

At the defamation trial, Neil Hoff, Moore's attorney, called a member of the State Bar Association Disciplinary Board to testify regarding disciplinary procedures. The letter was admitted and Mr. Hoff questioned the Chief about the letter. In an apparent effort to show police ill will towards Moore, Hoff inquired why the Chief chose to write a letter to the Bar Association rather than contact him directly, since the Chief was aware of his status as a Governor of the Washington State Bar Association. The defense moved for a mistrial following the disclosure of this fact. The motion was denied, but the court later gave a curative instruction directing the jury to disregard Hoff's status with the Bar Association.

After presentation of evidence, the court instructed the jury on the law relative to all claims. The court's damage instruction for the malicious prosecution claim permitted inclusion of a reasonable expense for attorney fees. The jury returned a general verdict awarding Moore $18,000 in damages.

Appellants contend the occasion on which the Chief's letter was communicated was absolutely privileged, and thus no liability results.

All privileges, conditional or qualified, and so-called absolute, are founded on policy considerations. Absolute privilege as it developed has been confined to cases where obvious public interests and the administration of justice require that free speech prevail over the right to preserve one's reputation. W. Prosser, Handbook of the Law of Torts § 114 (4th ed. 1971). If an absolute privilege applies to defamatory publications, however false or malicious, complete immunity follows. Gold Seal Chinchillas, Inc. v. State, 69 Wash.2d 828, 420 P.2d 698 (1966). Because of this extraordinary scope, absolute privileges have been limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from the record. Twelker v. Shannon & Wilson, Inc., 88 Wash.2d 473, 564 P.2d 1131 (1977). Engelmohr v. Bache, 66 Wash.2d 103, 401 P.2d 346 (1965).

In addition to these considerations, the complete immunity of absolute privilege is afforded only if there exists some compelling public policy justification. Twelker v. Shannon & Wilson, Inc., supra.

In applying these criteria to this case, we first note that the publication by Chief Smith was directed to a local voluntary bar association. This association, as opposed to the State Bar Association, was without the power to discipline a speaker whose conduct exceeded the "bounds of permissible conduct" or to strike a statement from the record. We are reluctant to adopt any rule which would place a burden on lay persons requiring that they make fine distinctions when attempting to air legitimate grievances against attorneys or risk the forfeiture of a privilege. For this reason, the privilege should apply alike to occasions on which one communicates with either a local or state bar association.

As we examine the policy considerations, however, we see no compelling justification for extending an absolute privilege in this situation. We conceive of no conditions presently existing within the bar, nor have appellants demonstrated any, sufficient to warrant placing attorneys under a disability suffered by no other profession. We therefore decline to follow the reasoning of the Oregon court in Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959), as urged by appellants. That opinion does not adequately reconcile two important but often conflicting interests: an individual's right to a good reputation and society's interest in protecting full disclosure of facts relating to a person's qualifications and conduct.

An attorney is entitled to no less protection than the law extends to members of other professions who have the benefit of a cause of action for defamation which results from communications sent to professional associations, clients or other professionals. In such cases, courts have reconciled the individual's reputation rights and society's interest in protecting legitimate criticism of the qualifications of those who perform public service by the application of conditional or qualified privilege. See, e. g., Anderson v. Reynolds, 342 F.Supp. 101 (D.Utah 1972) (physician suing law enforcement officers); Segall v. Piazza, 46 Misc.2d 700, 260 N.Y.S.2d 543 (1965) (teacher suing parent of a student); Jankelson v. Cisel, 3 Wash.App. 139, 473 P.2d 202 (1970) (dentist suing former patient).

We believe the above approach is the correct one, and thus here adopt the view that a conditional or qualified privilege attaches to publications made in good faith and without malice on occasions when a person communicates with a local or state bar association. This privilege protects the interests of the bar association, the publisher, the community, and strikes the appropriate balance necessary to protect a professional reputation.

The defense of qualified privilege was described by this court in Owens v. Scott Publishing Co., 46 Wash.2d 666, 674, 284 P.2d 296 (1955). Once the existence of an occasion of qualified privilege is established, the burden of proof to demonstrate abuse of privilege shifts to the plaintiff. A simple mistake, innocently made through ignorance of legal practices, will not destroy the privilege. Conley v. Southern Import Sales, Inc., 382 F.Supp. 121 (N.D.Ala.1974); Restatement (Second) of Torts § 594, comment b ; § 595, comment b ; § 600, comment b (1977). ¹

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