Do Colorado Attorneys Have an Absolute Privilege to Defame Litigants via the Internet?

Colorado attorneys who have been sued for defamatory statements they published via the Internet about adverse parties in active or pending litigation should not expect to be able to successfully assert the absolute privilege defense.

The Issue

This blog article briefly addresses one legal issue that has not yet been addressed by the Colorado Court of Appeals:

Whether a Colorado attorney who has been sued for a defamatory statement he published via the Internet about an adverse party in one of his active cases is entitled to an absolute privilege when the evidence can prove by clear and convincing evidence that his defamatory statement was false and he published it with reckless disregard as to whether it was true or false.

Key Facts

According to the U.S. Census Bureau, more than seventy percent of United States households use the Internet. According to the International Telecommunication Union, almost three billion people are using the Internet.

Legal Analysis

It is unlikely that a Colorado attorney would be entitled to an absolute privilege if he published a defamatory statement via the Internet about an adverse party in one of his active cases. As soon as he did this, he should have lost the ability to prove his absolute privilege defense because he intentionally and voluntarily published his defamatory statements to recipients who were not involved in or closely connected to any judicial proceeding in which he and the adverse party were or are involved.

Take a look at Club Valencia Homeowners Asso. v. Valencia Associates, 712 P.2d 1024, 1027 (Colo. App. 1985). Below is the key part of one of the holdings in this opinion that should prevent the lawyer from successfully asserting the absolute privilege.

As well, the maker of the statement and the recipient must be involved in and closely connected with the proceeding. Thus, an attorney’s publication of defamatory statements that are plainly irrelevant and impertinent, voluntarily made, and which the party making them could not reasonably have supposed to be relevant to the litigation, would not be privileged.

Id., 712 P.2d at 1027 (emphasis added).

Even though the Colorado lawyer would not be able to prove his absolute privilege defense, he might be entitled to a qualified privilege for his defamatory statement about the adverse party in the active case. His statement might also involve a matter of public concern. Therefore, even though the lawyer could be sued for defamation and the plaintiff’s defamation claim should survive a C.R.C.P. 12(b) motion to dismiss, the plaintiff might need to prove the following by clear and convincing evidence at trial: (1) the statements the lawyer published were false and (2)(a) he knew the statements he published were false when he published them or (2)(b) he recklessly disregarded evidence that the statements were true or false when he published them. See Colo. CJI-Civ 22:1 – 22:3, 22:18 – 22:19.

Since attorneys have advanced knowledge about evidence law and how to prove or disprove facts, all other things remaining equal, it should be easier to prove an attorney recklessly disregarded evidence that his defamatory statements could have been false than it would be to prove that a non-attorney did.

By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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