Puncturing of Large Inflatable Rat Leads to Defamation Suit Against an Attorney
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Not only did I find the law interesting in this case, but it also caught my attention because lately as I have been heading out for lunch with my colleagues in downtown Chicago we have spotted inflatable rats (like the one at issue in the case) being displayed and wondered what the purpose of them was - now I know. The Illinois appellate court recently held that an absolute privilege applies to a lawyer's defamatory statements to a potential party before a lawsuit is initiated. Atkinson v. Affronti.
The case stemmed out of the picketing of a construction site because of the use of non-union workers. The picketers displayed a large inflatable rat to draw attention to their cause. The rat was punctured by someone who then left the scene, and one of the picketers then filed a police report and accused the superintendent from the work-site of puncturing the inflatable rat. It was later discovered that someone else was the culprit. However, before police charges were dropped against the superintendent, the union retained a lawyer to bring a claim against the general contractor from the work-site based on the destruction of the inflatable rat. The lawyer then wrote a letter to the general contractor informing him of the union's intention to sue for damage to the union's property. No lawsuit was ever filed. The superintendent then sued the lawyer for defamation and for placing him is a false light due to the accusations the lawyer made in the letter to the general contractor.
The appellate court held that the litigation privilege applies to defamatory communications made before a lawsuit is commenced and application of the privilege does not require a showing that the defendant acted in good faith. They further explained that the privilege applies as long as the communication is pertinent to a proposed lawsuit and irrespective of the lawyer's knowledge of the statements falsity or the lawyer's motives.
*Some of the information for this post was gathered from the Professional Liability Reporter, Volume 32, Number 2.
This raises the issue of defamation vis-à-vis the non-intended target of the union picket or even the owner of the building. I am a construction attorney and have taken the position many times with both the union(s) and the NLRB that if the message sent by the placement of the “rat” is directed again anyone other than the party that is the target of the picket, that the union has defamed that innocent party(ies). This “rat” has appeared at many projects in the City of Chicago and has the potential to send a defamatory message against an unintended party. While I do not believe that a judge would ever restrain a union’s right to free speech, he/she would certainly make sure that the “rat’s” message is specifically tailored to the alleged offending party.