Toomer v. Breaux

• Decision Date: 05 November 1962
• Docket Number: No. 674,674
• Citation: 146 So.2d 723
• Parties: John Sheldon TOOMER, Plaintiff-Appellee, v. Alphonse L. BREAUX, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 723

146 So.2d 723

John Sheldon TOOMER, Plaintiff-Appellee, v. Alphonse L. BREAUX, Defendant-Appellant.

No. 674.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Rehearing Denied Nov. 28, 1962.

Certiorari Denied Jan. 14, 1963.

Charles Jaubert, Lake Charles, for defendant-appellant.

John Sheldon Toomer, Lake Charles, for plaintiff-appellee.

Before TATE, FRUGE and CULPEPPER, JJ.

TATE, Judge.

This is a suit by an attorney against his former client to recover a legal fee owed for certain services and also for damages. The defendant client denies liability and reconvenes for certain damages.

The defendant client appeals from judgment awarding a legal fee to the plaintiff attorney. The latter answers the appeal, praying that the award be increased.

This dispute arises from the plaintiff's representation of the defendant and others in a suit to recover for the death of certain cattle allegedly poisoned by a drilling compound used in the drilling of an oil well. Recovery was denied by the trial court; the judgment of dismissal was affirmed by this appellate court; and the Supreme Court denied writs of certiorari and review. See Breaux v. Magnolia Petroleum Company, La.App. 3 Cir., 131 So.2d 615, certiorari denied.

After this appellate court rendered adverse judgment, the client Breaux made a written complaint to the local bar association, which complaint was referred to that organization's grievance committee. In this letter Breaux stated that the case had been lost because of the failure of the present plaintiff attorney to introduce into evidence certain laboratory reports, although requested to do so by Breaux.

Shortly thereafter, the plaintiff attorney filed the present suit, to recover his legal fee of $300 due for representing Breaux in the Magnolia case, above-cited, and further praying for twenty-five thousand dollars damages allegedly caused by the libelous statements contained in Breaux's letter of complaint to the local bar association. Breaux answered the suit, defending on the ground that the statements in the letter were privileged, but also reconvening on the ground that he was entitled to damages because the suit of Breaux v. Magnolia, above-cited, was lost through the negligent failure of the plaintiff, despite repeated requests to do so, to present certain laboratory reports in evidence.

All issues presented by these original pleadings and decided by the trial court are brought before us through the defendant's appeal and the plaintiff's answer to the appeal. We think that the trial court correctly decided these issues, for the most part, for the following reasons:

1. Privileged nature of the communication to the bar association.

Accepting for purposes of this discussion the plaintiff's contention that defamatory and untrue remarks concerning him were contained in the letter of complaint to the bar association, we agree with the trial court that the defendant made them without malice and that the defendant is not liable in damages for any defamatory remarks contained in the letter of complaint to the bar association, since such remarks were privileged.

On the grounds of public policy, in order to encourage the free communication of views in certain instances, the law recognizes certain communications as privileged and, as such, not within the rules imposing liability for defamation.

In some limited instances, such as in legislative debates, the privilege may be absolute and thus applicable even if the defamatory statement is maliciously made.

In other more numerous instances, a publication enjoys a 'qualified' or conditional privilege, applicable if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.

See: 33 Am.Jur. 'Libel and Slander', Sections 124, 125, and 126.

Thus, for example, defamatory statements made by a witness to an investigating committee of a trade organization, if relevant and if made in good faith and without malice, enjoy a qualified privilege, even though the statements turn out to the untrue. Walsh v. Bertel, 187 La. 877, 175 So. 605. 'Information given in good faith, in the performance of a legal, moral or social duty, on a subject in which the party giving the information has an interest, if given to party having a corresponding duty or interest, is qualifiedly privileged.' 175 So. 609.

In every jurisdiction in which the question has arisen, it has been held that either an absolute or (at least) a qualified privilege attaches to a former client's complaint to a bar association grievance committee of his lawyer's alleged negligence in the performance of the legal work retained to do. Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959); Annotation, 'Libel and slander: privilege in connection with proceedings to disbar or discipline attorney,' 77 A.L.R.2d 493. This is based upon the social interest of the public, the courts, and the bar itself in affording the fullest possible investigation by those lawfully entitled to do so, of grievances alleged against the conduct of attorneys, in order either to correct abuses complained of or else to expose such complaints as unfounded if the investigation so indicates.

We think this general rule applies in Louisiana and that the defendant Breaux's communication to the bar association was therefore privileged and non-actionable. (We expressly do not decide whether the privilege is absolute or qualified, since in either event the communication is privileged under the present circumstances, where no malice or unreasonable publication is shown.)

Counsel for appellee urges, however, that although the communication to the bar association may have been privileged, nevertheless it was also communicated to the defendant Breaux's son, who had typed the letter of complaint for him. It is suggested that thus there was actionable publication of the defamatory remarks by their communication to a third person not within the privileged relationship.

It is true that the communication of a Non-privileged defamatory statement to even a single person constitutes actionable publication, Jozsa v. Moroney, 125 La. 813, 51 So. 908, 27 L.R.A.,N.S., 1041. This seems to include the communication even to a transcribing stenographer only, Modisette & Adams v. Lorenze, 163 La. 505, 112 So. 397; Annotation, 'Libel and slander: communication to defendant's employee or business associate as publication or as privileged', 166 A.L.R. 114, 117.

However, the scope of a qualified privilege extends to the reasonably necessary use of clerical personnel (as herein) in the treansmission of Privileged communications, as well as to the incidental publication thereof to employees or associates of either the sender or the receiver, providing such incidental publication is in the usual course of business and is reasonably necessary to effect the communication of the privileged matter to those entitled to receive it. ALI Restatement of Torts, Section 604; 33 Am.Jr. 'Libel and Slander', Section 189.

2. Loss of Magnolia suit not proved to have been caused by neglect of attorney.

By his reconventional demand, the defendant client seeks to recover the damages allegedly caused him by his attorney's negligence in prosecuting the Breaux v. Magnolia suit. The measure of recovery sought is the amount of the award he should have obtained in the Magnolia case, plus the court costs and attorney's fees unsuccessfully expended therein.

An attorney is liable to his client for the damages caused by the latter by the attorney's negligence in the handling of the client's business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. King v. Fourchy, 47 La.Ann. 354, 16 So. 814; Dyer & Stevenson v. Drew, 14 La.Ann. 657; Spiller v. Davidson, 4 La.Ann. 171 (stating, for example, that it is necessary for the client 'to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the attorney,' 4 La.Ann. 172); Thompson v. Lobdell, 7 Rob. 369; Breedlove v. Turner, 9 Mart. (O.S.) 35...