Does Judicial Immunity Trump an Abuse of Process Claim?

By Jeffrey P. Lewis

The judicial privilege, also known as judicial immunity, “extends to ‘communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” This principle is meant to extend “to parties to afford freedom of access to the courts … and to counsel to enable him to best represent his client’s interests.” It applies only to communications that are “pertinent and material to the redress or relief sought.” On the other hand, abuse of process occurs where the defendant: “(1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.” But where is the line drawn between conduct that is privileged and conduct that constitutes actionable abuse of process? Two recent cases, Naythons v. Stradley, Ronan, Stevens & Young L.L.P., 2009 WL 2329915 (C.A.3 (Pa.)) and General Refractories Company v. Fireman’s Fund Insurance Company, 337 F.3d 297 (3rd U.S.Cir. 2003), offer 3rd U.S. Circuit decisions on opposite sides of the line between privilege and abuse.

In Naythons, the plaintiff had served as the neutral arbitrator, not a party, in the underlying action, which involved a claim by church members against the church leaders for allegedly misappropriating church funds. Although this dispute began in state court, the parties agreed to arbitration. Following a hearing, the arbitrator found against the church leaders and ordered a full accounting. Upon completion of the accounting, the arbitrator completed his written final adjudication. But before he could sign and file it, he received an anonymous “threat” over the Internet. When informed of the threat, the church leaders requested that the arbitrator recuse himself based upon the premise that the threat had resulted in bias in the arbitrator against them. When he refused, counsel for the church leaders, on their clients’ behalf, sought the ouster of the arbitrator by seeking relief in the state court proceeding.

The conduct that particularly caught the court’s attention was the filing of a petition to recuse the arbitrator “based on bias, misconduct, dishonesty and fraud.” Thereafter, the arbitrator dated the adjudication for the date he had completed writing it, which had occurred before he was threatened, and then issued it. Counsel for the church leaders responded by filing a petition to vacate the award and moved for the scheduling of a hearing on both petitions.

The arbitrator then filed suit against counsel for the church leaders. In the complaint, he contends that the conduct of counsel for the church leaders constitutes abuse of process and wrongful use of civil procedure “due to the ‘scorched earth’ litigation strategy” that they allegedly used. In addition to finding that the arbitrator lacked standing, the district court granted the motion to dismiss on both counts because it “found that the doctrine of judicial privilege protects attorneys, arbitrators and judges from these types of claims, and that if courts abrogated the doctrine in the way [the arbitrator] advocates, it would ‘chill zealous advocacy.’ ” The district court also found that the arbitrator could show no harm that had resulted from the conduct in question.

Supported by a non-precedential opinion, the 3rd U.S. Circuit affirmed, solely on the basis that sustaining these claims “would abrogate the doctrine of judicial privilege, whereby ‘pertinent and material’ communication made in in [sic] the context of judicial proceedings are absolutely privileged from civil liability.” Because it found the judicial privilege issue “so overarching,” the court did not address any of the other issues. In this court’s view, the remedy for such alleged conduct, if as egregious as the arbitrator alleges, lies in the state court action.

In General Refractories, the defense lawyers in the underlying action, now defendants in the abuse of process action, were accused of engaging in “an intentional campaign to hide critical facts and documents” from disclosure and production in the discovery process. The trial court in the underlying action later imposed sanctions for this conduct, finding that the lawyers in question had, among other things, “attempted to hide discoverable documents in an attorney’s file, and have [sic] used an overly broad, clearly untenable, theory of ‘privilege’ to conceal” what was very damaging evidence to their client.

The defendant lawyers argued and the district court held that their “response to discovery and court filings in [the underlying matter] are absolutely privileged and, as such, cannot support a claim for abuse of process.” But the 3rd U.S. Circuit disagreed. In its view, “[t]he mere existence of the abuse of process tort is evidence that judicial privilege applies to a much narrower range of activity than the attorney appellees urge.” Instead, it held that abuse of process exists in instances “[w]here judicial process is being perverted, [and] immunity would impede, not further, the interests protected by the judicial privilege.”

So what makes the alleged conduct in Naythons privileged but the alleged conduct in General Refractories abuse of process? It comes down to whether the conduct was “pertinent and material to the redress or relief sought” or “essential to the exploration of legal claims in litigation.” In Naythons, the allegations of bias, misconduct, dishonesty and fraud are all valid bases for removal of an arbitrator, which was the goal. That counsel had no factual basis for these allegations does not make it abuse of process, although it would certainly make it the basis for sanctions. Whereas, in General Refractories, the goal of counsel was to pervert the process by engaging in conduct intentionally calculated to obstruct the discovery process as a means to hide damaging evidence.

A prudent litigator will never assume that the shield of judicial immunity is impenetrable.