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For a long time, Florida courts have employed the “litigation privilege” to provide “all persons involved in judicial proceedings, including parties and counsel, and absolute privilege from civil liability for acts taken in relation to those proceedings.”  North Star Cap. Acquisitions, LLC v. Krig, 611 F.Supp.2d 1324 (M.D. Fla. 2009).    Precedent from the Supreme Court of Florida in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla. 1994), explained that the litigation privilege provides “absolute immunity … [for] any act occurring during the course of a judicial proceeding, regardless of whether the act involved a defamatory statement…so long as the act has some relation to the [judicial] proceeding.”  This privilege broadly extends to any allegedly tortious behavior.  Levin explained that, “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” The reason behind this rule, the Florida Supreme Court has said, is to ensure that the “participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.”  Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Courts have extended the litigation privilege to acts occurring outside the courtroom or pre-trial court hearings.  In its later opinion in DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013), the Supreme Court explained that this absolute privilege is applied based on whether the alleged misconduct occurred during the course of some “formal” judicial proceeding, including the “formal discovery process.”  The United States Court of Appeals for the Eleventh Circuit in Jackson v. Bellsouth Telecomms., 372 F.3d 1250 (11th Cir. 2004), explained that “[e]vents taking place outside the courtroom during discovery or settlement discussions are no less an integral part of the judicial process, and thus deserving of the protection of the [litigation] privilege, than in-court proceedings.”  For example, in Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999), the Florida appellate court applied the litigation privilege to statements made during a witness interview in preparation for trial because “the question is not whether the statement was compelled or under oath; the question is merely whether the statement was made ‘in connection with’ or ‘in the course of’ an existing judicial proceeding.”

In its Levin decision, the Supreme Court of Florida emphasized the need to avoid chilling legal advocacy for clients. “In determining that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.  Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.”  More recently, the United States District Court for the Southern District of Florida in Gonzalez v. Porter, 2023 WL 2923601 (S.D. Fla. April 12, 2023), applied the litigation privilege in the context of a criminal defense attorney who advised his client during a federal investigation: “The plaintiffs seek to be able to impose civil penalties on a criminal defense attorney for his provision of advice during a federal investigation. This outcome would place criminal defense attorneys in a position of needing to constantly guard against how their advice to their clients could be used against them in a subsequent civil proceeding.  It would therefore necessarily interfere with the criminal defendant’s constitutional right to competent counsel.  It would also interfere with the constitutional right to avoid self-incrimination in the face of government questioning.  This is precisely the sort of chilling effect that the Florida Supreme Court has sought to avoid in over a century of consistent jurisprudence.”

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

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