On December 13, 2018, the Colorado Court of Appeals published its latest opinion on the litigation shield, which is an absolute privilege, and the strict privity rule. See Patterson v. James, 2018 COA 173. The opinion also addressed whether attorneys representing plaintiffs who filed claims against other attorneys that later got dismissed under Rule 12(b) may be held jointly and severally liable for the mandatory attorneys’ fees and costs awards that follow such dismissals in Colorado courts.
Lawyers should read the opinion closely before advising clients who want to sue attorneys they believe defamed them during the course of judicial proceedings.
Attorneys who do not routinely litigate defamation claims may call me if they are considering suing other attorneys for defamation in Colorado courts. I may be able to explain how other legal theories or statutes would be likely to lead to viable claims despite Patterson’s holdings.
After her husband’s passing, Louella Maxine Patterson’s adult stepchildren hired an attorney, M. Tracy James, to represent their interests during their father’s estate’s probate proceedings and related estate matters. Ms. Patterson, through her attorney Robert A. Lees, sued Ms. James for statements Ms. James had published during the course of her representation.
Ms. James moved to dismiss Ms. Patterson’s claims against her under Rule 12(b), Colorado Rules of Civil Procedure. Ms. James also sought an attorneys’ fees award, under C.R.S. §§ 13-17-201 and 13-17-102, against Mr. Lees. (Section 13-17-201 requires trial court judges to award attorneys’ fees and litigation costs to defendants after granting their motions to dismiss under Rule 12(b)).
The trial court judge granted Ms. James’ motion to dismiss and motion for attorneys’ fees and costs. The trial court judge also held Ms. Patterson and her attorney, Mr. Lees, were jointly and severally liable for the fees and costs after making the following legal important rulings.
– Ms. James’ statements were protected by the litigation shield, which is an absolute privilege barring claims against attorneys for statements the attorneys made while representing their clients in the course of or while preparing for judicial proceedings.
– Ms. Patterson and her attorney, Mr. Lees, may be held jointly and severally liable for the attorneys’ fees and costs incurred while defending the action because the trial court granted Ms. James’ motion to dismiss under Rule 12(b) and the trial court determined the claims Ms. Patterson brought against Ms. James through Mr. Lees lacked substantial justification.
Court of Appeals Holdings
In support of its opinion that the litigation shield applied to Ms. James’ conduct, the Colorado Court of Appeals argued:
An attorney’s statements, even if defamatory, when made in the course of, or in preparation for, judicial proceedings in a filed case cannot be the basis of a tort claim if the statements are related to the litigation. Begley v. Ireson, 2017 COA 3, ¶ 13 (citing Buckhannon v. US W. Commc’ns, Inc., 928 P.2d 1331, 1335 (Colo. App. 1996)). This litigation privilege exists to encourage and protect free access to the courts for litigants and their attorneys. Id.
The privilege not only shields attorneys from defamation claims arising from statements made in the course of litigation, but also bars other nondefamation claims that stem from the same conduct. Buckhannon, 928 P.2d at 1335. When the statements are integral to the judicial process, the immunity provided is absolute. Merrick v. Burns, Wall, Smith & Mueller, P.C., 43 P.3d 712, 714 (Colo. App. 2001). “It is necessary to consider the nature of the duties performed and whether such duties are an essential and integral part of the judicial process.” Id.The litigation privilege therefore applies “regardless of the tort theory” invoked, if the basis of the claim is a statement made in the course of litigation. Buckhannon,928 P.2d at 1335.
Explaining why Mr. Lees may be held jointly and severally liable for the attorneys’ fees and costs awarded for the claims Mr. Lees bought on Ms. Patterson’s behalf, the Court of Appeals argued:
Our primary task when construing a statute is to give effect to the General Assembly’s intent, which is determined first by looking to the plain language of the statute. Bostelman v. People, 162 P.3d 686, 689-90 (Colo. 2007). We consider statutes as a whole in order to effectuate legislative intent, and we give consistent, harmonious, and sensible effect to all the statute’s parts. Colo. Dep’t of Revenue v. Cray Computer Corp., 18 P.3d 1277, 1281 (Colo. 2001). However, where “a literal interpretation of the statute . . . leads to an absurd result,” the intent of the legislature will prevail. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1031 (Colo. 1998).
Article 17 of Title 13 provides Colorado courts with the authority to award attorney fees in certain circumstances. §§ 13-17-101 to -304, C.R.S. 2018. The legislature has instructed courts to “liberally construe the provisions of [the] article to effectuate substantial justice. . . .” § 13-17-101, C.R.S. 2018.
Section 13-17-102(1) bestows a general grant of authority on any court of record to award reasonable attorney fees as part of a judgment, provided such an award is not precluded elsewhere in the article. A later subsection contains a similar general grant of authority: “When a court determines that reasonable attorney fees should be assessed, it shall allocate the payment thereof among the offending attorneys and parties, jointly or severally, as it deems most just, and may charge such amount, or portion thereof, to any offending attorney or party.” § 13-17-102(3).
Section 13-17-102(2), in contrast, is a more specific rule that requires the court to award fees against any attorney or party who has brought or defended a civil action that the court determines lacked substantial justification. Section 13-17-201 contains a similar specific mandate, providing that where a tort action is dismissed in its entirety pursuant to a Rule 12(b) motion, the defendant “shall have judgment for his reasonable attorney fees in defending the action.” The purpose of the latter provision is to “discourage the institution or maintenance of unnecessary tort claims.” US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512, 518 (Colo. App. 2009) (citation omitted). There are two stark differences between the provisions: (1) section 13-17-102(2) applies regardless of when the matter is resolved, whereas section 13-17-201 applies only if the case is dismissed pursuant to Rule 12(b); and (2) section 13-17-102(2) requires a finding of lack of substantial justification, whereas section 13-17-201 applies automatically, without regard to whether the claims lacked justification.
Nothing in either of the specific mandates, however, exempts the concurrent application of the general rule set forth in section 13-17-102(3). Nor does the text of section 13-17-102(3) limit its application only to fee awards entered pursuant to section 13-17-102. For these reasons, Lees’s statutory interpretation argument — that had the legislature intended to include the authority to make an award under section 13-17-201 joint and several, it would have said so — must fail. The legislature did not need to grant the specific authority for a joint and several award in section 13-17-201, because it had already created the general authority to do so in section 13-17-102(3).
Moreover, interpreting the statute in the manner urged by Lees could lead to an absurd result. In this case, for example, in light of the complexity of the legal issues presented and Patterson’s deferential nature, the trial court found that Lees had appeared to make the critical legal decisions in this case. As the trial court aptly noted, it would be difficult to contemplate the deterrent effect intended by the legislature were fees to be awarded solely against Patterson. Rather, by generally authorizing joint and several fee awards under Article 17, the legislature enables the court to “effectuate substantial justice.” § 13-17-101.
Nor do we discern any abuse of discretion by the trial court in its decision to enter the fee judgment jointly and severally. In exercising this authority, a trial court should allocate sanctions between the attorney and the client according to their relative degrees of responsibility for the violation of the act. Anderson Boneless Beef, Inc. v. Sunshine Health Care Ctr., Inc., 878 P.2d 98, 101 (Colo. App. 1994). The record amply supports the trial court’s conclusion that Lees was the driving force behind the strategic decisions. As to Patterson, the trial court explicitly acknowledged that it was required to consider the factors set forth in section 13-17-103, C.R.S. 2018. While the trial court appropriately considered Patterson’s age and limited resources, it also acknowledged the statutory goal of deterrence of unnecessary tort litigation. In view of the trial court’s findings, which find ample support in the record, we cannot conclude that the trial court’s decision to impose joint and several liability was manifestly arbitrary, unreasonable, or unfair.
Before any attorney files a defamation or injurious falsehood claim against another attorney for statements the other attorney made while representing a client during or in preparation for a judicial proceeding, he or she should consider how the trial court judge will likely rule on an early motion to dismiss the claim. Patterson makes it highly likely well-briefed trial court judges will dismiss such claims in Colorado courts.
Now that the Colorado Court of Appeals has made it clear trial court judges have grounds to make the attorneys who file such claims jointly and severally liable for the foreseeable attorneys’ fees and costs awards arising from their early dismissals, litigators should be especially cautious when contemplating suing attorneys for their litigation-related statements. Colorado’s appellate courts have made it clear such actions are disfavored. They have now done about as much as they can do to discourage attorneys from suing other attorneys for claims arising from attorneys’ litigation-related speech.
Bonus Civil Procedural Holding
This opinion also contains a key civil procedural holding. It held that trial court litigants may cite in their trial court briefs and Colorado’s trial court judges may consider unpublished opinions for their persuasive value even though such opinions have no value as precedent.
Exercising its administrative authority, the supreme court has promulgated the Colorado Appellate Rules, including C.A.R. 35(f) which addresses unpublished opinions of the court of appeals. C.A.R. 35(e) makes clear that published opinions are binding precedent for “all lower court judges,” but our supreme court has made it equally clear that unpublished opinions “have no value as precedent,” Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 999 (Colo. 2003). But C.A.R. 35(f) does not prohibit parties from citing an unpublished decision in a trial court, and the court of appeals’s policy merely addresses the use of unpublished opinions in briefs filed with, and in arguments presented to, the court of appeals. Consequently, the trial court did not err when it considered the unpublished decision for whatever persuasive value it may have had.
By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.