la Porta v. Leonard

• Decision Date: 06 March 1916
• Docket Number: No. 15.,15.
• Citation: 97 A. 251,88 N.J.Law 663
• Parties: LA PORTA v. LEONARD.
• Court: New Jersey Supreme Court

97 A. 251

88 N.J.Law 663

LA PORTA

v. LEONARD.

No. 15.

Court of Errors and Appeals of New Jersey.

March 6, 1916.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Anthony La Porta against Clement De R. Leonard. From a judgment for plaintiff, defendant appeals. Reversed, and venire de novo awarded.

Harlan Besson, of Hoboken, for appellant. Merritt Lane, of Jersey City, for appellee.

MINTURN, J. The plaintiff alleges that during a proceeding in the recorder's court of the city of Hoboken the defendant, a lawyer of many years' standing, remonstrated with him, a colaborer at the bar, in the following manner:

"You are a vermin. You are a disgrace to the bar, and are starting out in the wrong way as a young lawyer. This will give you a black eye. You and your client committed perjury. You suborned your client."

This language resulted in a suit at law for slander, in which the plaintiff alleged serious injury to his reputation and standing in the community, and demanded substantial damages by way of reparation. To this demand defendant replied that he did not utter the language, and that, if he did, he was protected in so doing by the legal privilege peculiar to counsel, which, as he conceived, hedges him about in absolute security, so long as his utterances are honestly conceived, to conduce to the advantage of his client.

The testimony at the trial resulted in an issue of fact which the court properly left to the jury, with the result that a verdict for $300 was rendered against the defendant. A number of trial errors are alleged as grounds for reversal, none of which calls for extended consideration, excepting this fundamental contention of the defendant that his utterances in court as counsel for a client are absolutely privileged, and also the refusal of the trial court to instruct the jury that previous charges and accusations uttered by the plaintiff against the defendant might be considered by the jury in mitigation of damages.

The initial objection is fundamental in this department of the law, and serves to call forth a pronouncement from this court indicating the line of demarcation beyond which the utterances of counsel are not protected by the claim of privilege. The claim of privilege obtains recognition as an exception to a general rule of liability for tort-feasance only from the highest considerations of necessity and public policy. 1 Street on Legal Liability, 307.

In 1883 the English Court of Queen's Bench, speaking by Brett, Master of the Rolls, in Munster v. Lamb, 11 Q. B. D. 588, laid down the rule that the privilege of an advocate with respect to defamatory words uttered by him as advocate, in the course of a judicial inquiry, with reference to the subject-matter of the inquiry, is absolute and unqualified, and that no action can be maintained against him for such words, even though they were irrelevant and spoken maliciously and without reasonable cause.

In a copious note to this case the editor in 7 E. R. C. 727, presents a critical résumé of the English and American cases dealing with the subject; and the modification of this rule, as enunciated by the decisions of the American courts, where the question has been presented for consideration, is there emphasized by a series of well considered adjudications. As a result of this examination it is therein laid down that the general American doctrine upon this subject is that counsel is not liable to a civil action, nor to criminal proceedings for anything he may have said in the course of a trial or investigation, although malicious and intended to defame, provided it was relevant and pertinent to the subject-matter of the controversy, but otherwise if malicious and not pertinent and relevant to the inquiry. Rice v. Coolidge, 121 Mass. 395, 23 Am. Rep. 279; White v. Carroll, 42 N. Y. 161, 1 Am. Rep. 503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442; McMillan T. Birch, 1 Bin. (Pa.) 178, 2 Am. Dec. 426; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704.

Perhaps the most cogent expression of the American as distinguished from the English rule is to be found in Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505. There the court observed:

"We cannot accept the absolute and unqualified privilege laid down in Munster v. Lamb. * * * We cannot agree with Brett, M. R., that in a suit against counsel for slander, the only inquiry is whether the words were spoken in a judicial proceeding, and, it so, the case must be stopped. * * * If counsel in the trial of a cause maliciously slanders a party, or witness, or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the court, he is and ought to be answerable in an action by the party injured. This qualification of his privilege in no manner impairs the freedom of discussion so necessary to the proper administration of law, nor does it...