189 Conn. App. 85
Conn. App. Ct.2019Background
- Cohen, a former staff attorney for the Probate Court Administrator, was reprimanded after disciplinary proceedings and the Statewide Grievance Committee and Superior Court affirmed the reprimand.
- While those proceedings were pending, Cohen filed a grievance against King (chief disciplinary counsel); King answered, denying merit, and the panel dismissed Cohen’s grievance for lack of probable cause.
- Cohen then sued King for defamation and fraud, alleging false and malicious statements in King’s answer to Cohen’s grievance (claims included improper fiduciary fees and unauthorized side business).
- King moved to dismiss based on the litigation privilege; the trial court granted the motion and entered judgment for King.
- Cohen appealed, arguing the litigation privilege should not extend absolute immunity to attorneys who are the subject of a grievance and that alleged abuse of the judicial process or breach of candor precluded the privilege.
- The appellate court affirmed, holding the litigation privilege bars Cohen’s defamation and fraud claims arising from statements made in the grievance proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the litigation privilege bar tort claims based on statements made to the attorney disciplinary authority by an attorney who is the subject of a grievance? | Cohen: Privilege should not extend absolute immunity to respondents (attorneys who are the subject of grievances). | King: Grievance proceedings are quasi‑judicial; parties and witnesses get absolute immunity for relevant statements. | Affirmed; absolute immunity applies to relevant statements by an attorney who is a party to a grievance proceeding. |
| Do allegations that the defendant abused the judicial process or breached professional duty of candor defeat the privilege? | Cohen: Allegations of abuse of process and breach of candor remove the privilege shield. | King: Abuse‑of‑process claims are distinct from claims attacking words used in proceeding; privilege still protects statements. | Affirmed; privilege still bars claims based on statements; abuse‑of‑process exception not triggered by pleaded facts. |
| Does alleged fraudulent conduct by an attorney in a proceeding fall outside the privilege? | Cohen: Fraudulent statements should be actionable despite privilege. | King: Fraud by attorneys during proceedings is analogous to defamatory statements and remains privileged; other remedies exist. | Affirmed; fraudulent conduct alleged here is barred by the litigation privilege. |
| Was dismissal appropriate at the motion to dismiss stage? | Cohen: Facts as pleaded show privilege should not apply. | King: Complaint’s well‑pleaded facts still show statements are protected; dismissal proper. | Affirmed; on pleaded facts, absolute privilege applies as a matter of law, so dismissal was proper. |
Key Cases Cited
- Gold v. Rowland, 296 Conn. 186 (discussing motion to dismiss standard and construing well‑pleaded facts)
- MacDermid, Inc. v. Leonetti, 310 Conn. 616 (explaining litigation privilege and limits where abuse of judicial process claimed)
- Simms v. Seaman, 308 Conn. 523 (standard of review for absolute immunity questions)
- Hopkins v. O’Connor, 282 Conn. 821 (generous relevancy test for statements covered by privilege)
- Kelley v. Bonney, 221 Conn. 549 (defining quasi‑judicial proceedings covered by privilege)
- Petyan v. Ellis, 200 Conn. 243 (parties and witnesses receive absolute immunity for statements in judicial proceedings)
- Field v. Kearns, 43 Conn. App. 265 (grievance proceedings are quasi‑judicial and statements and filing a grievance are protected by absolute immunity)
- Tyler v. Tatoian, 164 Conn. App. 82 (fraudulent statements by attorneys during proceedings held privileged)