Preiser v. Rosenzweig

• Citation: 646 A.2d 1166,538 Pa. 139
• Parties: Stanley E. PREISER, Appellee, v. Richard ROSENZWEIG, Appellant.
• Decision Date: 22 August 1994
• Court: Pennsylvania Supreme Court

Page 1166

646 A.2d 1166

538 Pa. 139

Stanley E. PREISER, Appellee, v. Richard ROSENZWEIG, Appellant.

Supreme Court of Pennsylvania.

Argued March 8, 1994.

Decided Aug. 22, 1994.

Avrum Levicoff and Alan T. Silko, Anstandig, Levicoff & McDyer, Pittsburgh, for appellant.

Howard A. Specter and Katherine H. Fein, Specter Law Offices, P.C., Pittsburgh, for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

Common law accords an absolute privilege of immunity to statements, whether defamatory or not, to pleadings and other papers filed in regular judicial proceedings. This case raises a question regarding the extension of this absolute privilege to defamatory statements made in private arbitral proceedings conducted by a professional association, in this instance, the Special Fee Determination Committee of the Allegheny County Bar Association. The underlying facts in this case, as found in the record, are as follows.

Appellee, Stanley E. Preiser, Esquire, is licensed to practice law in other states, but not in Pennsylvania, and he is not a member of the Allegheny County Bar Association. From time to time, however, Mr. Preiser has been admitted to practice pro hac vice in various courts in Pennsylvania.

In May, 1990, Mr. Preiser was retained by one Rocco Viola, Jr., also an attorney, to represent him in a criminal matter pending in the U.S. District Court for the Western District of Pennsylvania. A dispute subsequently arose between Preiser and Viola over both Preiser's manner of representing Viola, and Preiser's fees. Viola fired Preiser as his attorney in August, 1990. In November, 1990, Preiser sued Viola for breach of contract in a suit filed in Broward County, Florida. Therein he claimed fees and expenses still due and owing from Viola.

Enter Appellant, Richard Rosenzweig, Esquire, now retained by Viola to represent him in the fee dispute with Preiser. Attorney Rosenzweig prepared and submitted Viola's complaints to the Special Fee Determination Committee of the Allegheny County Bar Association, in accordance with its procedures. ¹ Essentially, Viola alleged that Preiser had overcharged him, had failed to itemize his time properly, and had been inefficient. Paragraph 23 of the document filed with the Fee Dispute Committee, alleges, inter alia, that Mr. Preiser was guilty of "unbalanced and unlawyer-like behavior...."

The next stage in this unseemly dispute between lawyers is that Mr. Preiser commenced a defamation action against Mr. Rosenzweig in the Court of Common Pleas of Allegheny County averring that he had been defamed by Rosenzweig's complaints to the Bar Association. The Common Pleas Court sustained defendant Rosenzweig's preliminary objections on the basis of absolute privilege. However, on appeal, 418 Pa.Super. 341, 614 A.2d 303, the Superior Court reversed and remanded relying primarily on our decision in Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986). Judge Del Sole dissented, indicating that the record before him was unclear as to whether Preiser had consented to the arbitration proceeding. We find the record before us to be clear and admitted by both sides that Preiser had never consented nor participated in any manner in the arbitration proceedings.

Post v. Mendel was also a defamation action between two lawyers. In that case there was a formal judicial proceeding pending before the trial court, Mendel sent an allegedly defamatory letter to Post with copies to the Disciplinary Board, the trial judge, and one of Post's clients. We held that the alleged defamatory letter was not issued in the regular course of judicial proceedings as a pertinent and material communication and hence was not protected by absolute privilege.

In the instant matter, we granted allocatur because this case appears to raise the novel question of whether absolute privilege applies to pleadings or other statements made in private arbitral proceedings conducted by private or semi-private professional organizations, including voluntary state or local bar associations composed of lawyers, having no official court related standing whatsoever. ² After careful review, we conclude that, based upon the unique facts of this case, the Superior Court must be affirmed.

Appellant, Attorney Rosenzweig, argues that the fee dispute panel before which the alleged libel occurred was a dispute resolution committee operating in accordance with the explicit policy of our State Disciplinary Board and that, unlike the letter in Post v. Mendel, supra, the alleged defamatory statements here were in a "pleading" and were relevant to the relief sought. Mediation of fee disputes before bar association fee dispute committees is expressly recommended by this Supreme Court's Disciplinary Board in Comments to the Rules of Professional Conduct (for lawyers), Comment to Rule 1.5 "Fees," which states in pertinent part:

If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedures established by the Bar, the lawyer should conscientiously consider submitting to it....

It is the Disciplinary Board policy that allegations of excessive fees charged are initially referred to Fee Dispute Committees for resolution.

Regardless of these recommendations, however, the comments to our Rules of Professional Conduct do not turn what are otherwise private professional voluntary organizations, like local bar associations, into state or governmental entities, and they do not transform consensual private proceedings into mandatory official state run or state sanctioned regular judicial procedures where those potentially libelled are at least protected by the tribunal's power to punish by contempt or by the possibility of perjury charges being brought.

All of the out-of-state cases cited by Appellant, which we have examined, that extend an absolute privilege to statements or complaints submitted to state or local bar associations regarding attorney misconduct, typically involve situations where the state has an integrated bar (that is, a bar association which all lawyers in the state must belong to in order to be subject to the full authority of the Supreme Court) or situations where the bar association procedures (if they have any) are legislatively or judicially mandated or where the bar association possesses some disciplinary role or authority (making it the equivalent of our State Disciplinary Board). Hence, these citations are not ultimately helpful. See, e.g., Sinnett v. Albert, 195 N.W.2d 506, 188 Neb. 176 (1972) (proceedings before the state bar association's committee on inquiry were mandatory before a complaint against an attorney could be brought to court); Ramstead v. Morgan, 347 P.2d 594, 219 Or. 383, 77 A.L.R.2d 481 (1959) (disciplinary proceedings at issue were processes of the court); Sullivan v. Crisona, 283 N.Y.S.2d 62, 54 Misc.2d 478 (1967) (bar association grievance committees act pursuant to statute); Drummond v. Stahl, 618 P.2d 616, 127 Ariz. 122 (1980) (state bar is an arm of the State Supreme Court and under Court rule, complaints against attorneys must be filed with the state bar); Wong v. Schorr, 466 P.2d 441, 51 Hawaii 608 (1970) (absolute privilege applies to a letter sent to the Supreme Court committee established by rule and to a letter to the State Bar Association Ethics Committee provided that state bar immediately adopts adequate procedural safeguards, including rules of operation and requirement of secrecy, for the future); Kerpelman v. Bricker, 329 A.2d 423, 23 Md.App. 628 (1974) (Maryland statutes and court rules direct complaints against lawyers initially to bar association grievance committees who then have authority to file charges in court); Netterville v. Lear Siegler, Inc., 397 So.2d 1109 (Miss.1981) (a statute accords absolute privilege). In the case of Katz v. Rosen, 48 Cal.App.3d 1032, 121 Cal.Rptr. 853 (1975), also cited by Appellant, the Court applied only a qualified privilege to a letter written to a local bar association because the bar association had no power to impose sanctions for ethical abuses. This last case tends to support Appellee's position.

Appellant Rosenzweig, of course, nonetheless, argues that failure to apply an absolute privilege in the instant case would undermine the public policy of encouraging the reporting of lawyer misconduct (especially in connection with legal fees) and would strongly discourage the submission of claims of excessive or improper fees to local bar associations. While we are sympathetic to this contention, we think...