Mueller v. The Florida Bar

• Decision Date: 19 November 1980
• Docket Number: No. 79-2427,79-2427
• Citation: 390 So.2d 449
• Parties: Paul C. MUELLER, Appellant, v. THE FLORIDA BAR, an association, and Paul Gross, Appellees.
• Court: Florida District Court of Appeals

Page 449

390 So.2d 449

Paul C. MUELLER, Appellant, v. THE FLORIDA BAR, an association, and Paul Gross, Appellees.

No. 79-2427.

District Court of Appeal of Florida, Fourth District.

Nov. 19, 1980.

Thomas E. Hunt of Thomas E. Hunt, P. A., Fort Lauderdale, for appellant.

Todd A. Cowart of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.

HERSEY, Judge.

Paul C. Mueller, a member of The Florida Bar, was charged by complaint of The Florida Bar with eleven counts of misconduct. Finding him guilty of some of the charges the supreme court disbarred him effective October 3, 1977. The Florida Bar v. Mueller, 351 So.2d 960 (Fla.1977).

On the day following issuance of this opinion the following article appeared in the Fort Lauderdale News:

FT. LAUDERDALE

Court Disbars

Local Attorney

A local attorney was disbarred by the Florida Supreme Court yesterday for a variety of alleged improper activities, including filing false allegations against a former partner and his secretaries, false accounting to a client, improper plea bargaining and dual representation. In a 4-1 decision, the high court revoked the right of Paul C. Mueller, who has an office at 524 S. Andrews Ave., to practice law in Florida. A referee recommended a 30-month suspension for Mueller, an unsuccessful 1970 candidate for Fort Lauderdale small claims court, but the recommendation was overruled.

Subsequently Mueller filed an action which included claims for defamation and for malicious prosecution, naming as defendants The Florida Bar and Paul Gross. Mr. Gross was an agent of The Florida Bar in the capacity of assistant staff counsel. His duties included referring complaints to grievance committees and prosecuting grievance matters.

The gravamen of Mueller's complaint is that two of the offenses mentioned in the newspaper article, which also appeared in other publications and was aired on radio and television, are totally untrue, were published maliciously and without authority, and that the publication therefore constitutes libel per se; that groundless client complaints were made the basis for grievance proceedings; and that other complaints were solicited by the defendants and made the basis for grievance proceedings.

The first count of the amended complaint, dealing with publication, seeks damages for defamation and the second and third counts allege malicious prosecution.

The trial court dismissed the complaint with prejudice, finding that both defendants were insulated from liability by virtue of an absolute privilege. Mueller appeals on the grounds that Gross acted beyond the scope of his authority in releasing information to the news media, thus subjecting the defendants to liability for defamation, and that the complaint states a cause of action for malicious prosecution.

The question is whether The Florida Bar and its duly authorized agents enjoy immunity from liability for defamation or malicious prosecution by virtue of an absolute privilege. The answer is a qualified yes. However, we limit our consideration and therefore the holding in this case to the liability of The Florida Bar and its agents for defamation and malicious prosecution under the circumstances alleged in the amended complaint.

In the area of defamation, the rule in Florida is that words spoken or written by public servants in judicial, legislative and executive activities are protected by absolute privilege from liability for defamation. McNayr v. Kelly, 184 So.2d 428 (Fla.1966), adopting the rule and rationale of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). As the latter case points out, the privilege extends only to words or acts within the scope of the authority of the public servant. Ward v. Allen, 11 So.2d 193 (Fla.1942); Saxon v. Knowles, 185 So.2d 194 (Fla. 4th DCA 1966); Knight v. Starr, 275 So.2d 37 (Fla. 4th DCA 1973). We have previously distinguished absolute privilege from the concept of sovereign immunity. Cobbs Auto Sales, Inc. v. Melvin Coleman, 353 So.2d 922 (Fla. 4th DCA 1978).

Article V, Section 15, Florida Constitution (rev. 1972) provides:

Attorneys; admission and discipline.-The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.

Rule 11.03 of Article XI of the Integration Rule of The Florida Bar designates The Florida Bar and its staff counsel as agencies of the supreme court for the purpose of administering its jurisdiction. The Florida Bar is thus an arm and part of the judiciary, one of the three co-equal branches of state government, The Florida Bar v. Lewis, 358 So.2d 897 (Fla. 1st DCA 1978). It follows that The Florida Bar and its agents acting within the scope of their office are protected from liability for publication of defamatory matter by an absolute privilege.

The remaining question is whether Paul Gross was acting within the scope of his office or authority when he issued the media release which is the subject of appellant's complaint. For purposes of testing the sufficiency of the complaint we accept, as the trial court was bound to do, the truth of the well-pleaded allegations, including Gross's authorship of the release. Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla.2d DCA 1975).

Precedent indicates an inclination to give a broad definition to the term "scope of office" and its synonyms. Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979); Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla. 4th DCA 1979). We are persuaded that public policy dictates adherence to that philosophy.

Particularly apt to the situation which confronts us on this appeal is the following language from Johnson v. Carhart, 353 So.2d 874, 876 (Fla. 3rd DCA 1977):

By the foregoing, it is shown that the absolute immunity of such an official operates to relieve him from the necessity of being subjected to trial of an action based on his privileged conduct, notwithstanding that a complaint for libel which is filed against him may allege, as a conclusion, that he is without such immunity or was acting beyond the scope of his duty or office, where, as in this case, the complaint and its exhibits disclose the action of the official was taken in the interest of the public good and thereby within the scope of his duties and responsibilities, notwithstanding the allegations in the complaint to the contrary.

In that case, the prosecutor wrote a letter to the Chief of Police suggesting that a former policeman seeking reemployment with the police department had lied at his criminal trial. The test relied on by the court, as suggested by the...