ALFA International Product Liability Newsletter


Can A Law Firm’s Use Of A Website To Solicit Clients And Locate Witnesses Subject It To Claims Of Defamation? By: Victor J. Pioli, Editor The use of websites by lawyers has grown exponentially in recent years. Many law firms maintain websites that advertise their services. Law firms also use websites as a litigation tool. Websites provide a boundless repository of information for clients and prospective clients. They also provide a convenient means to locate and reach out to potential witnesses and gather information. But could a law firm’s use of a website for such purposes potentially subject it to a claim for defamation? For example, if a lawyer announces on a website that it is investigating a “defectively manufactured” product and looking for potential clients and witnesses with information about the product, could the law firm be sued for defamation by the manufacturer of the product for falsely labeling it “defective?” According to the Tennessee Supreme Court, the answer is no. In Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007), the court held that the absolute litigation privilege under Restatements (Second) of Torts § 586 will shield a lawyer from liability under such circumstances. Section 586 provides that “an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” The plaintiff manufacturer in Simpson tried to argue that § 586 should not protect the website communications at issue because they would be seen by persons not having a potential claim against the manufacturer and the law firm was not free to “indiscriminately circulate them to the entire world.” The court – while not unsympathetic to the manufacturer’s argument – ultimately rejected it. The court reasoned that “in some situations, attorneys may have no practical means of discerning in advance whether the recipients of the communication have an interest in the proposed proceeding. In that event, the attorney can only communicate with those having the ability and desire to join the proposed litigation by publishing the statement to a wider audience, which may include unconnected individuals.” No Illinois appellate court has been presented with the issue addressed by the court in Simpson – i.e., whether § 586 will protect a law firm’s dissemination of information over a website to locate potential clients and witnesses. However, Illinois cases have found that the absolute privilege under § 586 protects an attorney’s efforts to gather information and conduct informal discovery not involving a website. For example, in Potts v. Hilco Trading Co., Inc., 1997 U.S. Dist. LEXIS 16037 (N.D. Ill. 1997), the court found that the absolute privilege under § 586 applied to protect a letter sent by plaintiff’s counsel to ten former employees of defendant in an effort to investigate plaintiff’s claims. Similarly, in Cahill-Tyron v. Sweeney, 1988 U.S. Dist. LEXIS 4799 (N.D. Ill. 1988), the court held the absolute privilege under § 586 protected letters sent by plaintiff’s counsel to defendant’s clients seeking information and enclosing a copy of the complaint. Nevertheless, the issue has not been definitively decided under Illinois law and some authority suggests that the absolute litigation privilege under § 586 covers only “out-of-court communications between opposing counsel, attorneys and their clients, and between attorneys representing different plaintiffs in lawsuits against the same defendant” and Illinois “has never extended the privilege to cover out-of-court communications to other persons.” Kurczaba v. Pollock, 318 Ill.App.3d 686, 704, 742 N.E.2d 425, 440 (1st Dist. 2000). Of course, Kurczaba was decided before law firms’ uses of websites became as prevalent as they are today and the issue of the use of a website was never presented before the court in Kurczaba. Lawyers should nonetheless exercise caution regarding what information they post on their websites in their efforts to locate clients and witnesses. Until the issue is definitively decided by an Illinois appellate court, the application of the absolute privilege under § 586 remains an open issue and no law firm can be guaranteed protection from potential defamation claims based on their website postings.

Can A Law Firm’s Use Of A Website To Solicit Clients And Locate Witnesses Subject It To Claims Of Defamation?
By: Victor J. Pioli, Editor

The use of websites by lawyers has grown exponentially in recent years. Many law firms maintain websites that advertise their services. Law firms also use websites as a litigation tool. Websites provide a boundless repository of information for clients and prospective clients. They also provide a convenient means to locate and reach out to potential witnesses and gather information. But could a law firm’s use of a website for such purposes potentially subject it to a claim for defamation?

For example, if a lawyer announces on a website that it is investigating a “defectively manufactured” product and looking for potential clients and witnesses with information about the product, could the law firm be sued for defamation by the manufacturer of the product for falsely labeling it “defective?” According to the Tennessee Supreme Court, the answer is no.

In Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007), the court held that the absolute litigation privilege under Restatements (Second) of Torts § 586 will shield a lawyer from liability under such circumstances. Section 586 provides that “an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.”

The plaintiff manufacturer in Simpson tried to argue that § 586 should not protect the website communications at issue because they would be seen by persons not having a potential claim against the manufacturer and the law firm was not free to “indiscriminately circulate them to the entire world.” The court – while not unsympathetic to the manufacturer’s argument – ultimately rejected it. The court reasoned that “in some situations, attorneys may have no practical means of discerning in advance whether the recipients of the communication have an interest in the proposed proceeding. In that event, the attorney can only communicate with those having the ability and desire to join the proposed litigation by publishing the statement to a wider audience, which may include unconnected individuals.”

No Illinois appellate court has been presented with the issue addressed by the court in Simpson – i.e., whether § 586 will protect a law firm’s dissemination of information over a website to locate potential clients and witnesses. However, Illinois cases have found that the absolute privilege under § 586 protects an attorney’s efforts to gather information and conduct informal discovery not involving a website. For example, in Potts v. Hilco Trading Co., Inc., 1997 U.S. Dist. LEXIS 16037 (N.D. Ill. 1997), the court found that the absolute privilege under § 586 applied to protect a letter sent by plaintiff’s counsel to ten former employees of defendant in an effort to investigate plaintiff’s claims. Similarly, in Cahill-Tyron v. Sweeney, 1988 U.S. Dist. LEXIS 4799 (N.D. Ill. 1988), the court held the absolute privilege under § 586 protected letters sent by plaintiff’s counsel to defendant’s clients seeking information and enclosing a copy of the complaint.

Nevertheless, the issue has not been definitively decided under Illinois law and some authority suggests that the absolute litigation privilege under § 586 covers only “out-of-court communications between opposing counsel, attorneys and their clients, and between attorneys representing different plaintiffs in lawsuits against the same defendant” and Illinois “has never extended the privilege to cover out-of-court communications to other persons.” Kurczaba v. Pollock, 318 Ill.App.3d 686, 704, 742 N.E.2d 425, 440 (1st Dist. 2000). Of course, Kurczaba was decided before law firms’ uses of websites became as prevalent as they are today and the issue of the use of a website was never presented before the court in Kurczaba.

Lawyers should nonetheless exercise caution regarding what information they post on their websites in their efforts to locate clients and witnesses. Until the issue is definitively decided by an Illinois appellate court, the application of the absolute privilege under § 586 remains an open issue and no law firm can be guaranteed protection from potential defamation claims based on their website postings.