GMAC MORTGAGE CORPORATION V. NOEL MARK BOTTSAnnotate this Case
RENDERED : APRIL 21, 2011
TO BE PUBLISHED
sixyrrxctr C~vixrf Of
MORGAN 8v POTTINGER, ATTORNEYS, P .S .C .
ON APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN PECKLER, JUDGE
NOEL MARK BOTTS
GMAC MORTGAGE CORPORATION
ON APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN PECKLER, JUDGE
NO . 07-CI-00224
NOEL MARK BOTTS
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING AND REMANDING
In these combined cases, we are asked to determine if the absolute
privilege afforded statements made in the course of a judicial proceeding
applies to statements contained in an attorney disciplinary complaint .
GMAC Mortgage Corporation (hereinafter "GMAC"), through its attorney,
Morgan 8s Pottinger, Attorneys, P.S .C . (hereinafter "Morgan 8s Pottinger"), filed a
disciplinary complaint against Appellee, Noel Mark Botts (hereinafter "Botts") .
Botts had represented GMAC's successor-in-interest in a foreclosure action .
Neither the details of Botts' representation nor the unethical conduct alleged
are relevant to the issues before us today. Suffice it to say, the Office of Bar
Counsel referred the matter to the Inquiry Commission, which found sufficient
probable cause to file charges against Botts . The Trial Commissioner
conducted an evidentiary hearing and ultimately determined that the Kentucky
Bar Association (hereinafter "KBA") failed to prove, by a preponderance of the
evidence, that Botts committed any of the acts or omissions charged . The
Board of Governors accepted the Trial Commissioner's determination . In a
confidential Opinion and Order, this Court declined further review and
dismissed the charges against Botts.l
Subsequently, Botts filed suit against GMAC and Morgan 8, Pottinger in
the Mercer Circuit Court, requesting relief from the pecuniary and professional
harm he has allegedly suffered as a result of the disciplinary complaint . He
alleged wrongful use of civil proceedings, defamation and slander, abuse of
process, fraud, and outrageous conduct . Appellants filed numerous motions to
dismiss based on claims of immunity, all of which were denied.
1 Contrary to the assertion contained in Justice Noble's dissent, Botts was never
temporarily suspended from the practice of law as a result of this matter.
The present matter represents the consolidation of three separate
appeals, each from an order denying a motion to dismiss . Because both GMAC
and Morgan 8v Pottinger raised claims of absolute immunity as the basis for
their motions, the order is appealable, though interlocutory . Breathitt County
Bd. of Educ. v. Prater, 292 S.W .3d 883, 887 (Ky.'2009) (stating "an order
denying a substantial claim of absolute immunity is immediately appealable
even in the absence of a final judgment .") . Further, because the claim raises
an issue of statewide importance, this Court granted Morgan 8, Pottinger's
motion to transfer .
Appellants argued that they were immune from suit pursuant to the
judicial statements privilege and SCR 3 .160(4) . The trial court rejected the
former argument, reasoning that the privilege does not protect Appellants'
statements made to the KBA. Without further elaboration, the trial court
concluded that these statements were "adjudged without merit ." The trial
court likewise rejected Appellants' assertion that SCR 3 .160(4) immunizes
attorneys who file complaints with the KBA from civil liability . The court
determined that the rule granted only a qualified immunity and applies only
after a judicial determination that the complaint was made in good faith .
Though not argued by any of the parties, the trial court further opined that an
absolute grant of immunity pursuant to SCR 3.160(4) would be
unconstitutional, in violation of the separation of powers and equal protection
clauses of the United States and Kentucky Constitutions .
Whether a court should dismiss an action pursuant to CR 12 .02 is a
question of law . James v. Wilson, 95 S.W .3d 875, 884 (Ky.App . 2002) .
Consequently, the trial court's denial of Appellants' motions to dismiss
pursuant to CR 12 .02 will be reviewed de novo. Morgan v. Bird, 289 S.W .3d
222, 226 (Ky.App. 2009) . Furthermore, the question of whether a privilege
applies is a matter of law for the court to decide . Rogers v. Luttrell, 144 S .W.3d
841, 844 (Ky .App . 2004) .
Because it is determinative of the matter, we first address Appellants'
claims that they are entitled to absolute immunity from liability based on the
judicial statements privilege . "The prevailing rule and the one recognized in
this jurisdiction is that statements in pleadings filed in judicial proceedings are
absolutely privileged when material, pertinent, and relevant to the subject
under inquiry, though it is claimed that they are false and alleged with malice ."
Schmitt v. Mann, 291 Ky. 80, 163 S .W.2d 281, 283 (1942) . See also Smith v.
Hodges, 199 S .W .3d 185, 189 (Ky.App . 2005) ("The absolute immunity afforded
to defamatory statements made in the course of a judicial proceeding has a
long history in this Commonwealth . . . .") ; Morgan v. Booth, 76 Ky. 480 (1877) .
A communication must fulfill two requirements in order to fall within the
ambit of the judicial statements privilege . First, the communication must have
been made "preliminary to a proposed judicial proceeding, or in the institution
of, or during the course and as part of a judicial proceeding ." General Elec. Co.
v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir. 1990) (citing Restatement
(Second) of Torts § 587 (1977)) . Second, the communication must be material,
pertinent, and relevant to the judicial proceeding. Smith, 199 S .W.3d at 193
(citing Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W . 753, 754 (1925)) .
Attorney discipline proceedings which commence with the filing of a bar
complaint, as occurred in this case, are judicial proceedings . This Court is
granted original jurisdiction in the discipline of attorneys and regulation of the
profession . Ky . Const. § 116. The KBA has been vested with the authority of
this Court to administer that responsibility . SCR 3 .025 . See also KBA v.
Shewmaker, 842 S .W .2d 520, 521 (Ky . 1992) .
"Judicial proceedings include all proceedings in which an officer or
tribunal exercises judicial functions." Restatement (Second) of Torts § 587
(1977) . The disciplinary process has been likened to a criminal trial. KBA v.
Hams, 269 S .W.3d 414, 417-18 (Ky. 2008) . The Office of Bar Counsel is
empowered to assess complaints, investigate and prosecute disciplinary cases,
and impose alternative discipline when appropriate . SCR 3 .160(3)(A) . The
Inquiry Commission has authority to subpoena witnesses and take testimony .
SCR 3 .180(3) . The Trial Commissioner enters findings of fact and conclusions
of law . SCR 3 .360(1) . Clearly, the KBA exercises a judicial function in the
handling of disciplinary matters and, therefore, disciplinary hearings are
judicial proceedings . See 77 A.L.R. 2d 493 (collecting authorities) . See also
Baggott v. Hughes, 34 Ohio Misc . 63, 72, 296 N .E.2d 696, 701 (1973)
("Investigations and proceedings on complaints as to an attorney's professional
conduct is a judicial function in Ohio.") . Accord McCurdy v. Hughes, 248 N .W.
512 (N .D . 1933) ; Ashton-Blair v. Merrill, 928 P.2d 1244 (Ariz. Ct. App . 1996) ;
Doe v. Rosenberry, 255 F.2d 118 (2nd Cir. 1958) .
Thus, any statement made preliminary to, in the institution of, or during
the course of an attorney disciplinary proceeding will be privileged so long as it
is material, pertinent, and relevant to such proceeding . This would include
statements contained in the ethics complaint . The complaint triggers the
investigative and disciplinary functions of the KBA and, therefore, is always
material, pertinent, and relevant to attorney discipline proceedings . See Katz v.
Rosen, 48 Cal. App . 3d 1032, 1036 (Cal. Ct. App . 1975) ("Informal complaints
received by a bar association which is empowered by law to initiate disciplinary
procedures are as privileged as statements made during the course of formal
disciplinary proceedings .") .
Contrary to the trial court's determination, this conclusion is not swayed
by the fact that the charges against Botts were ultimately dismissed . See
Jarvis v. Drake, 830 P.2d 23 (Kan . 1992) (doctrine of absolute immunity barred
attorney's suit against former client's spouse who filed grievance against
attorney that was later dismissed) . Little explanation is needed to emphasize
that a lack of evidentiary support is not the equivalent of a finding of falsehood .
Regardless, even if patently false or entered with malice, Kentucky's judicial
statements privilege is absolute and would still apply. Accord Sinnett v. Albert,
195 N .W .2d 506 (Neb . 1972) (judicial statements privilege protects contents of
attorney ethics complaint so as to bar subsequent suit against complainant for
libel) ; Kerpelman v. Bricker, 329 A.2d 423 (Md . Ct . Spec. App. 1974) (absolute
privilege pursuant to judicial statements doctrine attaches to statements
contained in attorney disciplinary complaint) .
A larger question is posed, however, because Botts' complaint also
alleges wrongful use of civil proceedings, abuse of process, fraud, and
outrageous conduct . Stated otherwise, his claims are based not only on
Appellants' statements contained in the KBA complaint, but also on the act of
filing the complaint . Whether the judicial statements privilege encompasses
the act of filing the complaint is also a matter of first impression in Kentucky .
It seems that, until roughly the mid-twentieth century, courts assumed
the right of an attorney to sue for malicious prosecution or other similar tort
actions based on the filing of a disciplinary complaint . See generally 52 A.L.R .
2d 1217 (2011) . Indeed, a very early Kentucky case seems to acknowledge the
right of an attorney to pursue a malicious prosecution action against the
attorney who instigated disbarment proceedings against him. See Lancaster v.
McKay, 103 Ky. 616, 45 S .W. 887 (1898) (in action predating the Rules of
Professional Conduct and the establishment of the Bar Association as having
jurisdiction over disciplinary proceedings, judgment ultimately reversed for
insufficiency of proof that disbarment suit lacked probable cause) . However, in
the latter part of the twentieth century, a growing trend emerged to bar any
type of civil action predicated upon the filing of an attorney discipline or ethics
At least twenty-eight states have evinced a policy decision to bar such
civil suits through enactment of a court rule or statute . 2 These provisions,
whether granting absolute or qualified immunity to communications made to
the disciplinary authority, also prohibit any type of lawsuit based on the
privileged communication or complaint. Tennessee Supreme Court Rule 9, §
27 is representative of this type of court rule : "Communications to the board,
district committee members or Disciplinary Counsel relating to lawyer
misconduct or disability and testimony given in the proceedings shall be
absolutely privileged, and no civil lawsuit predicated thereon may be instituted
against any complainant or witnesses ." (Emphasis added.) Each of these rules
uses similarly expansive language barring any "lawsuit," "civil suit," or "civil
liability" without restricting the prohibition to suits for defamation, libel or
slander. Cf. WV R Lwyr Disc Rule 2 .5 (West Virginia designates that all
information provided to the disciplinary authority "shall be privileged in any
action for defamation.") . Though few cases exist interpreting the typically
broad language of these rules, at least four courts have specifically concluded
that the privilege would bar even claims relating to the act of filing the
DE Lawyers R Disc Proc Rule 10 (Delaware) ; GA Bar Rule 4-221 (g) (Georgia) ; RSCH
Rule 2 .8 (Hawaii) ; ID Bar Comm Rule 520(a) (Idaho) ; ILCS S.Ct.R . 775 (Illinois) ; Ind.
ADR 23 § 20 (Indiana) ; IA R 35.23(1) (Iowa) ; M. Bar . R. 7 .3(a)(1) (Maine) ; MA SJC
4.01 § 9(1) (Massachusetts) ; MI Rules MCR 9 .125 (Michigan) ; 52 Minn . Stat. Ann.
RLPR 21 (Minnesota) ; Miss. Code . Ann. § 73-3-345 (Mississippi) ; MO R Bar 5.315
(Missouri) ; MT R 17 (Montana) ; Nev . Sup. Ct. Rules 106 (Nevada) ; NH SCR 37(7)
(New Hampshire) ; NM R Disc 17-304 (New, Mexico) ; NCGSA § 84-28 .2 (North
Carolina) ; NDR Lawyer Discipline 6 .5 (North Dakota); 204 Pa. Code § 85.9
(Pennsylvania) ; RI RSCT, Art III Rule 7 (Rhode Island) ; SCACR 413 (South Carolina) ;
SDCL § 16-19-30 (South Dakota) ; TX Govt § 81 .072 (Texas) ; VA Code Ann § 54.139 .08 (Virginia) ; WI SCR 21 .19 (Wisconsin) ; Wy. Disp. Code § 10 (Wyoming) .
complaint, such as malicious prosecution or abuse of process . See Wallace v.
Jarvis, 459 S .E .2d 44 (N.C . Ct. App . 1995) ; Jarvis v Drake, 830 P .2d 23 (Kan.
1992) (interpreting rule which affords judicial immunity to participants in the
attorney discipline process) ; In re Smith, 989 P.2d 165 (Colo. 1999) (interpreting
former rule) ; Kamaka v. Goodsill Anderson Quinn & Stifel, 176 P .3d 91 (Haw .
2008) . But see Goldstein v. Serio, 496 So.2d 412 (La. Ct. App . 1986) (holding
that rule affording privilege to contents of bar complaint does not extend to the
act of filing the complaint) .
While the majority of states protect complainants through enactment of a
statute or rule, some have achieved the same result through application of the
judicial statements privilege and, thus, are more persuasive in consideration of
the present matter. In Stone v. Rosen, Florida recognized that an absolute
privilege protects statements made to the Bar Association in a complaint which
operates to prohibit the attorney's claim of malicious prosecution against the
complainant . 348 So .2d 387 (Fla . Dist . Ct. App . 1977) . The holding in Stone
was later reaffirmed by the Florida Supreme Court, notwithstanding
subsequent passage of procedural rules which removed confidentiality of the
grievance process . Tobkin v. Jarboe, 710 So .2d 975 (Fla . 1998) . The Court of
Appeals of Arizona reached a similar result in Drummond v. Stahl, wherein the
plaintiff-attorney filed suit against opposing counsel alleging tortious
interference with a contractual relationship through the filing of a bar
complaint . 618 P.2d 616 (Ariz. Ct. App. 1980) . The court determined that the
judicial statements privilege affords complainants an absolute privilege for
statements made in attorney discipline proceedings, and that the privilege
operated to bar the plaintiff's claim of tortious interference . Id. at 619-20 . See
also Ashton-Blair, 928 P.2d at 1246-47 (applying absolute privilege under
judicial statements doctrine to bar attorney's claim for defamation against
Though there is some authority to the contrary, see, e.g., Goldstein, 496
So.2d 412, we conclude that the judicial statements privilege encompasses the
act of filing the complaint, in addition to the statements contained therein .
Sound public policy compels this conclusion . "The doctrine of privileged
communications rests upon public policy `which looks to the free and
unfettered administration of justice, though, as an incidental result, it may, in
some instances, afford an immunity to the evil-disposed and malignant
slanderer ."' Schmitt, 163 S .W .2d at 284 (quoting Bartlett v. Christhilf, 14 A .
518, 520 (Md. 1888)) . This rationale applies no less to attorney discipline
proceedings. In order to maintain a self-regulating profession, the investigation
of unethical conduct must be vigorous and complainants must be free from
threat of any civil liability . Any lesser grant of immunity would have a chilling
effect on the reporting of attorney misconduct . See Jarvis, 830 P .2d 23 at 26
(internal quotations omitted) (["AJpprehension of personal liability for
presenting a question of professional responsibility to the disciplinary
administrator might tend to subvert the system established for ensuring that
persons holding licenses to practice law are fit to be entrusted with
professional and judicial matters .") .
The purpose of this policy would be eviscerated if the protection extends
only to the statements contained in the complaint itself, but not to the act of
filing the grievance . While Justice Noble is correct in her dissent that
sometimes the attorney and the complainant may be equally sophisticated and
on "equal-footing," this is often not the case . When the complainant is not an
attorney, there is an inequitable balance of power which creates a very real
opportunity for attorney intimidation . Attorneys can threaten and pursue
retaliatory litigation at very little expense and through their own means.
"Conversely, the cost of litigation coupled with the risk of liability in defending
against such an action could be enough to discourage an individual from
bringing a meritorious complaint ." Tobkin, 710 So .2d at 977 . Laypersons, in
deciding whether to file a bar complaint, cannot be expected to understand the
subtle legal difference between an allegation of defamation versus a claim of
abuse of process . And it is insufficient that an "honest" complainant would
eventually be exonerated of any abuse of process claim . It is the threat and
potential for retaliatory litigation - of any kind - that serves as a disincentive to
filing a bar complaint.
We must encourage persons with complaints against attorneys to submit
such information to the KBA for proper investigation and examination. This
includes persons who might lack knowledge of the law and, therefore, have
some doubt as to the propriety of the attorney's conduct or the validity of the
complaint . "If ethics investigations are to be conducted effectively, it is
imperative that complainants be free from the threat of themselves being sued ."
Farber v. Dale, 392 S .E.2d 224, 227 (W.Va. 1990) . This includes the act of
filing the bar complaint itself . The threat of any retaliatory suit - whether it is
for defamation, slander, or abuse of process - would have a chilling effect on
the filing of bar complaints .
We do not believe our holding today unduly burdens attorneys or
otherwise abrogates a right. Rather, certain causes of action do not exist in
privileged situations . Here, "one who elects to enjoy the status and benefits as
a member of the legal profession must give up certain rights or causes of action
. . . . " Stone, 348 So .2d at 389 . If a bar complaint is determined to be based
on probable cause and results in disciplinary action, then clearly the attorney
has no cause of action against the complaining party. If the complaint is
deemed lacking in probable cause, or even entirely without merit, any harm to
the attorney is minimal and would amount to little more than mere
inconvenience . In Kentucky, the bar complaint, the investigation by the
Inquiry Commission, and the disciplinary proceedings are entirely confidential .
SCR 3 .150(1) . In fact, there is no publication whatsoever unless, and until, a
public reprimand or other public discipline is imposed. Id. As such, the
potential harm suffered by an attorney at the hands of the malicious
complainant - if indeed the complaint lacks merit - is minimal and certainly
does not outweigh the competing interests . Further, because of the protection
afforded by the confidentiality of KBA proceedings, the attorney is not in the
same position as a party to an ordinary suit that might damage reputation or
character, where pleadings are public .
Accordingly, we hold today that any communication or statement made
to the KBA during the course of a disciplinary hearing or investigation,
including the contents of the bar complaint initiating such proceedings, are
absolutely privileged. This privilege extends to any claim relating to the act of
filing the bar complaint, such as abuse of process, wrongful use of civil
proceedings, or malicious prosecution .
Notwithstanding our holding herein, we must remand this matter to the
Mercer Circuit Court for a determination if further fact-finding is necessary .
Botts' complaint, including the amended complaint, is unclear as to the factual
basis of his claims, particularly those claims for fraud, defamation and slander .
As stated above, any claim based on the content of the KBA complaint, or on
the act of filing such complaint, must be dismissed . However, in his complaint,
Botts references statements allegedly made outside of, and prior to, the filing of
the complaint . The pertinent part is ambiguous at best. He does not identify
the content of the statements, at whom they were directed, in what forum they
were made, or specifically when they were made . He has presented no proof to
support his claims, other than the bar complaint . Indeed, on at least two
occasions during hearings before the trial court, Botts was asked whether he
had proof, other than the KBA complaint, and he replied that he did not. For
these reasons, we have serious doubt that Botts' bare allegation of
"accusations" satisfies the requirements of notice pleading so as to defeat a
motion to dismiss . Nonetheless, out of an. abundance of caution, we remand
this matter to the trial court for further fact-finding, if necessary, and for final
determination as to the viability of Botts' claim in light of our holding herein .
For the foregoing reasons, this case is remanded for further proceedings
consistent with this opinion.
Minton, C .J . ; Abramson and Venters, JJ ., concur. Noble, J., dissents by
separate opinion . Scott, J., also dissents by separate opinion in which
Schroder, J ., joins .
NOBLE, J., DISSENTING :
This case presents a difficult tension between
well-recognized tort claims such as wrongful use of civil proceedings,
defamation, tortious interference with the right to work, and important policy
considerations related to attorney discipline proceedings, which serve to protect
the public . The majority is clearly correct that the Supreme Court determines
how attorney discipline matters proceed .and the policy behind such
proceedings. On the other hand, Justice Scott is equally correct in his
assessment of how tort proceedings that deal with reputational matters have
developed through ancient common law principles, modern case law, and
statutes . Both opinions offer strong arguments . Nevertheless, I cannot fully
agree with either position, though ultimately I conclude that Justice Scott
would reach the correct result in allowing some of the Appellee's claims to
proceed. My biggest disagreement, therefore, is with the reasoning and result
of the well-written majority opinion, which I will address first.
The majority errs primarily in extending the judicial statements privilege
so that it bars even actions related to the filing of a complaint or initiation of
suit or prosecution .
I must agree with Justice Scott, who notes that at least some of
Appellee's claims-specifically his claim for wrongful use of civil proceedings
and outrageous conductare not based on the "judicial statements" in this
case. Instead, they stem directly from the act of wrongfully filing the bar
complaint, regardless of the complaint's content. Assuming the Appellee's
claims are true, which we must at this point, the filing of the bar complaint
resulted in Appellee's being temporarily suspended from the practice of law,
which substantially affected his income and led to other civil claims being
brought against him, and in his having to pay to defend himself at the
disciplinary proceedings-all of which the majority dismisses as "minimal and
. . . little more than mere inconvenience." So, if the judicial statements
privilege only extends to those claims based on the content of the judicial
statements, e.g., a defamation claim for statements in the bar complaint, at
least some of Appellee's other claims must survive .
The next question, then, is the proper scope of the judicial statements
privilege (also known as the judicial proceedings privilege) . That privilege
extends only to bar tort claims stemming directly from the content of the
judicial statements themselves, such as a defamation claim based on a
witness's testimony at trial. While no action lies because of the content of
statements made in a judicial proceeding, an action can lie for the fact that the
speaker instituted the proceedings wrongfully-that is, maliciously and without
probable cause-through wrongful institution of a civil proceeding, a form of
malicious prosecution . In such a case, the statements in the pleading, which
are privileged, are not the tortious acts ; rather, the initiation of the action itself,
regardless of the content of the pleadings, is the tortious act. See, e.g.,
Goldstein v. Serio, 496 So . 2d 412, 415 (La. Ct. App. 1986) ("The affirmative
defense of absolute privilege applies only to statements communicated to third
person . Malicious prosecution, however, is not concerned with the statements
made during a proceeding but rather with the intent of the parties in
instituting the original proceeding. Therefore, we can not hold that absolute
privilege is an affirmative defense to a malicious prosecution action .") . The
need for the immunity privilege for a speaker in a judicial proceeding and the
right of an individual to sue that speaker for wrongful institution of a civil
proceeding are therefore not legally mutually exclusive .
The majority, however, concludes that the privilege "extends to any claim
relating to the act of filing the bar complaint, such as abuse of process,
wrongful use of civil proceedings, or malicious prosecution ." In so holding, the
majority refers to the decisions of several other states that have extended a
privilege to bar complaints . In so doing, the majority errs in two ways . First, it
calls the new privilege an extension of the judicial statements privilege, which it
cannot be. Second, even assuming that this Court can manufacture a wholly
new privilege as part of its power to regulate the profession of law, it should not
The judicial statements privilege can apply only when the claim stems
from the statements made in the judicial proceeding, not from the act of
wrongfully bringing the action without probable cause . See Smith v. Hodges,
199 S .W.3d 185, 192 (Ky .App . 2005) (reviewing cases applying privilege to
malicious prosecution claims and noting they are "based upon grand jury
testimony") . In deciding if the privilege applies, the focus must be on the
allegedly tortious act-either a false statement or the wrongful institution of an
action . If the tort claim, whether for defamation, perjury, or even malicious
prosecution, is based on a false statement, the privilege can bar it. But if the
based on the institution of the action, the privilege has no
applicability whatsoever . To hold otherwise would subsume entirely the torts
of malicious prosecution and wrongful institution of civil proceedings in the
privilege, even outside the context of bar complaints . The majority's reading of
the privilege would effectively destroy the torts of malicious prosecution and
outrage in other contexts . 3
Though the majority does not address it, beyond noting that the trial court did, it is
clear that SCR 3 .160(4) is no help in creating a privilege for a bar complainant . It is
questionable whether such a rule can create a substantive privilege, as noted by the
But that issue need not be resolved, since this rule does not extend a privilege to a
bar complainant. The rule purports only to grant immunity to "the Association, the
Board, the Director, the Inquiry Commission, the Trial Commission, the Office of Bar
Counsel, [and] their officers, employees, agents, delegates,, or members" from liability
to a person who initiates a complaint or to any attorney against whom a complaint is
made . SCR 3 .160(4) . The rule makes no mention of immunity for the complainant.
It is intended to protect the direct participants in the disciplinary process itself, that
is, those who marshal the evidence (e.g., Bar counsel) and those who decide the case
(e.g., the trial commissioner, the Board of Governors), who in all likelihood would
enjoy judicial or quasijudicial immunity under the common law anyway. Bar
This understanding of the privilege as limited only to statements, and not
the act of wrongfully initiating a claim lacking probable cause, comports with
the history and policy behind the privilege, in addition to the cases applying it.
The judicial statements privilege originated in English common law, and has
always applied in American courts . An excellent and scholarly discussion of
the development of the privilege to its present state in Kentucky law is set forth
by Court of Appeals Judge Guidugh in Smith v. Hodges, 199 S .W.3d 185 (Ky .
App . 2005), and thus will not be discussed at length here . However, the basis
for the privilege is a matter of public policy supporting fundamental justice by
assuring participants in judicial or quasijudicial proceedings that they can
speak freely in presenting their claim, or by a lawyer presenting his or her
client's claim, without fear of suit or liability for defamation . See 2 Dan B .
D.obbs, The Law of Torts 1154 (2001) . The fact that this sometimes results in a
grant of immunity to malicious liars has been considered justified by the need
for honest testimony without fear of reprisals . See Schmitt v. Mann, 163
S .W.2d 281 (Ky. 1942) . Viewed another way, very old Kentucky case law
A party to a judicial proceeding may, by himself or
counsel, write or say anything of and concerning the
case, or of a witness who testifies in the case, that is
pertinent and material to the controversy, and he can
not be held to answer for scandalous words, unless,
Complainants do not fall within this category of direct participants in the disciplinary
That the complainant also happens to be a "member" of the KBA, i.e ., an attorney,
does not garner any immunity. Such a reading stretches the rule beyond the point of
reasonable interpretation .
under the pretense of pleading his cause, he
designedly wanders from the point in question, and
maliciously heaps slander upon the party whose
conduct or evidence is under consideration ; and so
long as it can be said that such party confines himself
to that which is pertinent and material, he is under no
obligation to show that his words are absolutely true ;
and can not be made to answer for maliciously saying
that which the law permits him to say .
Morgan v. Booth, 76 Ky. (13 Bush) 480, 483-84 (1877) (internal citations
Clearly, our state constitution gives the Supreme Court authority to
regulate the practice of law and to discipline attorneys through procedures it
sets . Ky . Const § 116 . Thus, because they are required by the Supreme
Court's established procedure, hearings before the disciplinary agents
enumerated in the Supreme Court Rules can only be "judicial or quasijudicial"
in nature . And, as the majority points out, "Judicial proceedings include all
proceedings in which an officer or tribunal exercises judicial functions ."
Restatement (Second) of Torts § 587 (1977) . Therefore, the Court's agents
enjoy a form of "judicial" immunity as set forth in SCR 3 .160(4) . Similarly, a
claimant has absolute immunity for statements made in the course of such a
judicial proceeding under the judicial statements privilege, even though the
claim relies on false or malicious statements, if they are material and relevant
to the proceedings . Schmitt v. Mann, 291 Ky. 80, 163 S .W .2d 281, 283 (1942) .
However, in his dissent Justice Scott points out that the tort of wrongful
institution of a civil proceeding is not based on the fact that false or malicious
statements have been made, but rather that the attorney has been wrongfully
subjected to a claim at all . He argues that there has been no immunity for this
type of claim heretofore, and that to allow such is to effectively nullify the tort.
Such claims arise through a civil action brought against a person who has
previously filed what is claimed to be a "frivolous" suit resulting in damages to
the plaintiff. These damages can cover the cost of the previous litigation and
other damages, including damage to reputation. While today's nomenclature
uses the term wrongful institution of a civil proceeding, this is merely a form of
malicious prosecution, which has historically applied to both criminal and civil
proceedings . Woods v. Finnell, 76 Ky. (13 Bush) 628 (1878) . The action may
be brought when a judicial proceeding has been maliciously instituted against
a person without probable cause . Historically, as well as today, "[p]robable
cause means less than prima facie evidence of guilt, namely, such
circumstances as warrant suspicion ." Branham v. Berry, 4 Ky. Law Rep. 412
(Ky. Super . 1882) (citing Locke v. United States, 11 U .S . 339 (1813)) .
Thus, I must conclude that the judicial statements privilege cannot
extend to the act of wrongfully filing a claim which arguably lacks probable
cause or to statements made outside the context of a judicial proceeding. What
the majority seeks. to do is create an entirely new privilege, one based on this
Court's power and duty to regulate attorney conduct, as other states have
done. See, e.g., Toft v. Ketchum, 113 A.2d 671, 676 (N .J. 1955) . But we should
acknowledge that we are creating an entirely new privilege, one that works only
to disadvantage attorneys, rather than stretching an established privilege to
the breaking point . There is a strong basis for a debate about whether such a
new privilege is sound policy or even permissible under the Kentuc
Justice Scott has emphasized this latter issue, finding that the majority's
position is in tension with the Constitution's guarantee to the right to sue for
damage to one's reputation . Though I am somewhat sympathetic to the
position, I do not think it is necessary to reach the constitutional question
because sound policy disfavors the creation of a new privilege for bar
Justice Scott discusses Section 114 of the Kentucky Constitution, known
as the Open Courts Clause, which does say that "every person" shall have a
remedy "by due course of law" for an injury done to his or her reputation,
among other things ; but I cannot read Section 114 to make it unconstitutional
to apply the judicial statements privilege for claims made in a lawyer discipline
action even though such an application precludes the reputational torts of
slander and libel. That privilege, much like the torts of malicious prosecution
and wrongful use of civil proceedings, albeit under a different name, existed at
the time Section 114 was enacted . So I think the privilege continues to apply
to the contents of statements made during a judicial proceeding and is not
barred by the Constitution . By the same token, I believe malicious prosecution
or wrongful institution of a civil proceeding remain viable torts-for all
Kentucky citizens .
Thus, instead of looking to the Constitution, this case should be resolved
by deciding whether a new privilege, one related to this Court's constitutional
power to regulate attorney conduct and discipline, should or can be created.
The real tension here comes from public policy that affects all the governed and
an individual's right to a cause of action. The fact that the individual having
the cause of action for wrongful institution of a civil proceeding or the tort of
outrageous conduct is a lawyer does not make a justifiable difference .
I acknowledge that lawyers are members of a profession, with the
attendant responsibilities of professional conduct, and that the Supreme Court
has been charged with regulating that conduct . But it is simply overreaching
with that power when the Court creates a new privilege which applies only to
the detriment of lawyers. Doing so reflects an overly cynical view of attorneys
in favor of claimants that presupposes that clients must not be harmed, but
that it is acceptable for clients to inflict harm on innocent counsel.
Since the judicial statements privilege is only related to statements made
in a judicial proceeding, any grant of immunity for other causes of action must
be created out of whole cloth . This Court must not do this absent extremely
compelling reasons . It is true that some states have found the possibility of
chilling bar complaints to be sufficiently compelling, but I find their positions
to be poorly supported .
Close examination of the factors that must be considered weighs against
creating such a broad-sweeping immunity . First, what is the justification for
treating attorneys more harshly than any other professional in Kentucky?
Physicians, counselors, social workers, and other professions that are governed
by licensure boards may bring a wrongful institution of civil proceedings or an
outrageous conduct claim against the client who has wrongly accused them .
Under the majority's opinion, lawyers would be the only professional group in
Kentucky who would be denied these causes of action . All plaintiffs are denied
a cause of action for slander and libel due to the judicial statements privilege .
The same cannot be said for this new, unnamed privilege, unless the Court
means to effectively abolish the torts of outrage and wrongful institution of a
civil proceeding by saying the new privilege applies to all such cases where the
judicial statements privilege applies . Is there a true, overweening justification
for this disparate treatment of attorneys?
Second, while this Court is charged with governing the practice of law, an
attorney who is exercising his or her right to access to the courts is not
engaging in the practice of law. If filing a personal law suit is the practice of
law, then the courts will be overwhelmed with illegal practice claims, as that is
essentially what every unlicensed plaintiff would be doing. While this analogy
may sound absurd, it illustrates that the Court's only constitutional authority
here is to govern the actual practice of law. Unless exercising one's right to
access to the courts is somehow unethical so as to impact an attorney's actual
practice of law, this Court has zero authority to tell an attorney or any other
citizen that he or she cannot file a lawsuit absent overwhelming public interest
to the contrary.
Third, creating and applying this privilege only to attorneys simply is not
justified by any substantial evidence, though the privilege certainly impacts an
attorney's substantial rights. There is only supposition that allowing an
attorney to bring a wrongful institution of civil proceedings or outrageous
conduct action would result in legitimate claims not being made. No studies
have been presented, not even rudimentary surveys . Applying a privilege to
these causes of action requires acting on a possibility of chilling but results in
a certainty of deprivation of rights .
Additionally, this concern over a possible chilling effect presumes that all
such clients are the so-called "little guy," who is unsophisticated, perhaps
uneducated, and therefore stands powerless next to the attorney, who is
learned in the law and an officer of the courts . But, as amply illustrated by
this case, clients are frequently at least on an equal footing with their counsel,
if not in a superior position, having the resources of large multinational
corporations . Allowing such a client an absolute privilege to file a bar
complaint would invite abusive practices by which the client seeks to bend the
attorney to its will and force him to take (or not to take) a course of action that
he or she deems prudent . Moreover, this Court cannot take the position of
splitting hairs, so as to allow the privilege for the "little
y" but not for the
powerful or sophisticated client . Interestingly, there is little or no likelihood
that an attorney will even bring a malicious prosecution claim against the sort
of client who the privilege is intended to protect. Such a suit would rarely be
Fourth, this Court must guard against a knee jerk reaction that, of
course, an attorney must not sue his client, even though the attorney may be
seriously harmed by a client's antics, just because the attorney was previously
in a trust relationship with a client. To have value, trust must be a two-way
street, and in no other area of the law do we deny a person the right to remedy
a breach of trust by an opponent . Though a distasteful concept, a client who
makes a bar complaint against an attorney is in the posture of an opponent .
And while attorneys remain ethically bound to preserve their clients' secrets,
they are not required to stand by helplessly while their careers are ruined. The
trial court is perfectly capable of screening what is appropriate evidence and
what remains ethically shielded. Nor must this Court jump on the bandwagon
that because other state courts are granting such immunity, we must do
likewise, at least not without sufficient consideration of how our jurisprudence
is affected generally by this decision . In many ways Kentucky is unique, and
our Court is sworn to be cognizant of our own law and needs first.
Finally, this Court must be cognizant of the reputation of our profession,
which is often determined based on negative publicity about lawyer
wrongdoing, with very little said about all the right things lawyers do . Over
history, lawyers have defended our liberties, supported causes that bring better
government, given of their time to the needy, and been a lifeline to clients lost
in a morass of legalities . Many do pro bono work, or work in public service
jobs. Indeed, our oath of office requires Kentucky attorneys to swear to uphold
the principles put forth in our constitutions and statutes . When an attorney
fails in this duty, this Court has a strong. interest in appropriate discipline,
even as much as denying the right to practice law. But when an attorney has
done no wrong, and a bar complaint is dismissed against him or her, there is
no remedy to let the public know, or to get recompense for a damaged
reputation, other than to bring suit for the causes of action available to them
such as wrongful institution of civil proceedings or outrageous conduct, though
it is true that most attorneys do not choose to bring these actions. It is
nonetheless their choice . These actions can serve the attorney individually, but
can also serve the bar in general because a negative impression of the practice
of law can be corrected .
This Court must act circumspectly and carefully . We must not
undermine either the respect of the public or of the attorneys who practice
before us. I do not believe that allowing attorneys the same right to act
individually as is enjoyed by all other citizens will undermine public respect or
understanding, but will certainly keep the respect and willingness of attorneys
to practice .
Consequently, I dissent from the majority opinion and would instead
allow Appellee's claims not covered by the judicial statements privilege, as
described above, to proceed .
SCOTT, J ., DISSENTING : I am compelled to dissent from the majority's
conclusion that bar complainants enjoy absolute-rather than qualifiedimmunity from civil liability rightfully arising from the filing of an alleged
malicious bar complaint . I simply do not believe the majority's conclusion is
supported by the Constitution of this Commonwealth or sound precedent of
Bar complaints have the potential to devastate an attorney's reputationthe lifeblood of any lawyer's practice . In fact, one's reputation, be it that of a
lawyer or not, is so precious in this Commonwealth that the term is enshrined
in Section Fourteen of the Kentucky Constitution, a provision that commands:
All courts shall be open, and every person for an injury
done him in his lands, goods, person or reputation,
shall have remedy by due course of law, and right and
justice administered without sale, denial or delay.
(Emphasis added.) Today, in broad strokes, the majority concludes that the
judicial statements privilege "encompasses the act of filing the complaint, so as
to bar [a] claim for `misuse of the attorney discipline process' and `reckless
filing of a Bar complaint .' Given the fact that the right to recover for one's
reputation is secured in our Constitution, I simply cannot agree .
Moreover, I believe that this Court's decision is at odds with our adoption
of the tort of "wrongful use of civil proceedings ." In . Drasin v. Raine, 621
S .W .2d 895, 899 (Ky. 1981), we explained that there are six basic elements
necessary to maintain an action of "wrongful use of civil proceedings," namely :
1) the institution or continuation of original judicial proceedings or of
administrative or disciplinary proceedings ; 2) by, or at the instance, of a party;
3) the termination of such proceedings in the opposing party's favor; 4) malice
in the institution of such proceeding; 5) want or lack of probable cause for the
proceeding; and 6) the suffering of damage as result of the proceeding. See
also Mapother & Mapother, P.S.C. v. Douglas, 750 S .W.2d 430 (Ky . 1988) .
It is true, however, that the Douglas court recognized, as I do today, that
these actions are not favored in the law. Yet, as plainly stated in Douglas, the
disfavor of the tort of wrongful use of civil proceedings springs forth from a
desire to protect only those actions filed "in good faith and upon reasonable
grounds." Id. This preference for claims made in good faith and upon
reasonable grounds is key, and dispositive, in my opinion. Nothing in our
jurisprudence, until today, has ever supported the notion that a bad-faith
claim deserves the protection of absolute immunity . The majority's decision
today overwhelms even the "tort of outrage" against attorneys who assert
malicious bar complaints .
To do so, the majority cites to the case of Field v. Kearns, 682 A .2d 148
(Conn . App . Ct. 1996) for the proposition that there is a present trend by other
states in adopting absolute immunity for even "the act of filing a grievance
complaint ." Indeed, the Connecticut Court of Appeals in Field did address
whether the act of filing a bar complaint gives rise to absolute immunity in
favor of the complainant, the issue squarely before the Court today. Id.
However, according to the Connecticut Supreme Court, Field is contrary to
Rioux v. Barry, 927 A.2d 304 n .6 (Conn. 2007) ("In Field, the court concluded
that absolute immunity applied to a vexatious litigation claim. The holding of
Field is inconsistent with the holding of this opinion.") .
In Rioux, the Connecticut high court held that the stringent requirements
of wrongful use of civil proceedings4 provided enough protection to
complainants rendering unnecessary an "additional layer of protection" to
"would-be litigants in the form of absolute immunity ." Id. at 310 . The Court's
logic surrounded the premise that because the tort had such stringent
requirements, there existed adequate room for both appropriate incentives to
report wrongdoing and protection of the injured party's interest in being free
from unwarranted litigation . Id. Thus, because the tort strikes the proper
balance, the Connecticut high court found it unnecessary to foreclose those
who suffered harm as a result of vexatious litigation. Id.
Furthermore, the Connecticut Supreme Court, noted :
[W]ere we to provide absolute immunity for the
communications underlying the tort of vexatious
litigation, we would effectively eliminate the tort. . . .
[V]irtually any initiation or procurement of a previous
lawsuit would necessarily be part of any judicial
Thus, the tort of vexatious litigation
would virtually always be subject to absolute
immunity . Indeed the Restatement of Torts implicitly
recognizes this by providing that statements made in
the course of a judicial or quasi judicial proceeding are
absolutely immune in the context of a defamation suit
but not in the context of a suit for vexatious litigation.
See 3 Restatement (Second), . Torts Section 587, at 249,
comment (a) (1977) .
Like the Connecticut Supreme Court, I believe the tort of wrongful use of
civil proceedings provides adequate protections to would-be bar complainants
The Connecticut tort in Rioux is referred to as vexatious litigation which requires
the same elements as the tort of wrongful use of civil proceedings . See Rioux, 338
A.2d 309 .
and would not have the chilling effect posited by the majority . Rather than
adopting an approach that provides bad faith bar complainants with the
impenetrable shield of absolute immunity, I would adopt a more tempered
approach consistent with our own rules of professional conduct, that of
qualified immunity . See Kentucky Rule Civil Procedure 11 (requiring attorney to
have good faith regarding the factual and legal soundness of documents
bearing his name) ; SCR 3 .130(8 .3)(d) (providing immunity to lawyer acting in
good faith in the reporting of misconduct) ; see also Comment 5, SCR 3 .130
(8 .3) (explaining that qualified immunity applies to attorney's reporting
For these reasons, I respectfully dissent from the majority's conclusion
that bar complainants enjoy absolute-rather than qualified-immunity from
civil liability rightfully arising from the filing of a vexatious and bad-faith bar
Schroder, J., joins .
COUNSEL FOR APPELLANTS,
MORGAN & POTTINGER, ATTORNEYS, P.S.C . :
Calvin Ray Fulkerson
John Christian Lewis
Erin Celeste Sammons
Fulkerson, Kinkel 8v Marrs, PLLC
239 North Broadway
Lexington, KY 40507
COUNSEL FOR APPELLANT,
GMAC MORTGAGE CORPORATION :
Richard P. Corthell
Dinsmore 8s Shohl LLP
1900 Chemed Center
255 E . 5th Street
Cincinnati, OH 45202
Jeremy Stuart Rogers
Dinsmore 8s Shohl LLP
101 South Fifth Street, Suite 2500
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Noel Mark Botts
P . O . Box 443
Harrodsburg, KY 40330
COUNSEL FOR AMICUS CURIAE,
KENTUCKY BAR ASSOCIATION :
Linda Ann Gosnell
Chief Bar Counsel
Steven T. Pulliam
Deputy Bar Counsel
Kentucky Bar Association
514 W. Main Street
Frankfort, KY 40601-1883