Morgan & Pottinger, Attorneys, P.S.C. v. Botts
348 S.W.3d 599
| Ky. | 2011Background
- GMAC and Morgan & Pottinger filed a disciplinary complaint against Botts for alleged attorney misconduct in a foreclosure matter.
- KBA referred the matter to the Inquiry Commission; an evidentiary hearing occurred and the Trial Commissioner found no proven misconduct.
- The Board of Governors accepted the Trial Commissioner’s decision; Kentucky Supreme Court declined to review and dismissed the charges in a confidential Order.
- Botts sued GMAC and Morgan & Pottinger in Mercer Circuit Court alleging wrongful use of civil proceedings, defamation, abuse of process, fraud, and outrageous conduct.
- Motions to dismiss based on absolute immunity were denied; the actions were consolidated on appeal as interlocutory denials of immunity.
- The central legal question was whether absolute judicial statements privilege extends to statements to the KBA and to the act of filing the bar complaint itself, and if so, to what extent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the judicial statements privilege extend to statements made to the KBA in the disciplinary process? | Botts argues the privilege covers statements in the KBA complaint. | GMAC/Morgan & Pottinger contend the privilege applies to statements in judicial proceedings and thus to the KBA communications. | Yes; the privilege extends to statements to the KBA and to the complaint contents. |
| Does the privilege extend to the act of filing the bar complaint (malicious filing, abuse of process, etc.)? | Botts asserts claims based on filing the complaint are actionable despite content. | GMAC/Morgan & Pottinger contend filing the complaint is within the privilege. | Yes; the act of filing the bar complaint is absolutely privileged. |
| Is SCR 3.160(4) immunity for bar-commission participants applicable to bar complainants or only to disciplinary bodies? | Botts contends SCR 3.160(4) provides broader immunity to those involved in the process, possibly shielding complainants. | GMAC/Morgan & Pottinger argue SCR 3.160(4) affords immunity to the disciplinary entities, not to the complainant. | SCR 3.160(4) does not create immunity for bar complainants. |
Key Cases Cited
- Schmitt v. Mann, 163 S.W.2d 281 (Ky. 1942) (absolute privilege for statements in judicial proceedings)
- Smith v. Hodges, 199 S.W.3d 185 (Ky. App. 2005) (longstanding absolute immunity for statements in judicial proceedings)
- Morgan v. Booth, 76 Ky. (13 Bush) 480 (Ky. 1877) (early authority for judicial privilege in pleadings)
- General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119 (6th Cir. 1990) (definition of preliminary to and material to judicial proceedings)
- Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (Kan. 1992) (absolute immunity in attorney discipline context extends to filings)
- Tobkin v. Jarboe, 710 So.2d 975 (Fla. 1998) (absolute privilege for statements to disciplinary bodies)
- Stone v. Rosen, 348 So.2d 387 (Fla. Dist. Ct. App. 1977) (absolute privilege for complaints to bar association)
- Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (Conn. 2007) (limits of vexatious litigation immunity in context of complaints)
- Field v. Kearns, 43 Conn. App. 265, 682 A.2d 148 (Conn. App. 1996) (trend toward absolute immunity for bar complaints in some jurisdictions)
- Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (Ariz. Ct. App. 1980) (disposition of attorney discipline-related claims in preparation of proceedings)
- Kamaka v. Goodsill Anderson Quinn & Stifel, 176 P.3d 91 (Haw. 2008) (application of privilege to disciplinary communications)
- Goldstein v. Serio, 496 So.2d 412 (La. Ct. App. 1986) (privilege limits to contents vs. act of filing)