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Litigation Privilege, Attorney Immunity and Ethics: Defending Retaliatory Suits and Ethics Complaints

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, February 23, 2023

Recorded event now available

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This CLE webinar will discuss the boundaries of the litigation privilege and attorney immunity as defenses to retaliatory civil actions and ethical complaints filed against attorneys and party opponents. The panel will also survey evidentiary and procedural issues that arise in these cases. As part of their analysis, the panel will review what tactics are ethically out of bounds under Model Rule of Professional Responsibility 4.1 that deals with Truthfulness in Statements to Others.


When attorneys seek to gain an advantage by disclosing or threatening to disclose embarrassing secrets, illegal activity, deny facts known to be true, or otherwise cause fear to the opposing party, they are more frequently being sued for defamation, bad faith, intentional interference with contractual or beneficial relations, intentional infliction of emotional distress, fraud, or the like.

Sometimes these types of activities are absolutely privileged and sometimes they are only entitled to partial immunity. Much depends on when and where the statements are made and how state courts define “litigation.”

Regardless of civil liability, such conduct can lead to ethics complaints. Model Ruel 4.1 attempts to set some boundaries, but it offers no bright line rule. Landry’s Inc., et al. v. Animal Legal Defense Fund, et al (Tex., No. 19-0036, June 15, 2021), and Dorfman v. Smith, 342 Conn 582 (2022), are just two illustrations of the risks lawyers face if they utilize these tactics.

Listen as our experienced panel of litigators assists counsel in understanding the judicial proceedings privilege and attorney immunity and the limits of MR 4.1.



  1. Introduction and overview of recent cases; Model Rule 4.1
  2. Origins and history of the litigation privilege
    1. Nexus between communication and proceedings
    2. Qualified v. absolute privileges
    3. Exceptions, malice, and cross jurisdictional issues
  3. Applying privilege outside of litigation
    1. Pre-suit
    2. Post-suit
    3. Non-litigation situations
  4. Bar complaints and malpractice


The panel will discuss these and other key issues:

  • Does Model Rule 4.1 apply when an attorney is a party to litigation?
  • To what degree are intentionality and good faith factors when considering questions of litigation privilege or attorney immunity?
  • Do the privilege and immunity apply to transactions or only to judicial proceedings?
  • What law applies?


Jeffrey, Lieser
Jeffrey P. Lieser

Lieser Skaff Alexander

Mr. Lieser concentrates his practice on complex business and real estate litigation.  He also serves as class...  |  Read More

Reid, Nicole
Nicole Reid, Esq.

Managing Attorney
Reid Legal Solutions

Ms. Reid began practicing law in the State of Florida in 2012. She is an active member of the Florida Bar, the American...  |  Read More

Simeone, Timothy
Timothy J. Simeone


Mr. Simeone is co-chair of the Issues and Appeals group at HWG LLP, and also works extensively with both the...  |  Read More

Smith, James E.
James E. (Jim) Smith

Crain Caton & James

Mr. Smith principally focuses on environmental and safety matters including defense of enforcement actions, cost...  |  Read More

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