HOLOHAN, Chief Justice.
Appellants Green Acres Trust and Green Acres Memorial Gardens, Inc. ("Green Acres") brought a defamation action against all of the appellees based on oral and written statements published by the appellees during a "press conference" preliminary to the initiation of a class action against Green Acres. The appellees May London, Arthur W. Yoder and Cecil M. Yoder are representative members of the class of plaintiffs in the action filed against Green Acres. Appellees Michael J. Valder, Harry E. Craig, David J. Rich and Douglas G. Martin ("lawyer defendants") are the lawyers for the plaintiffs in that action. The trial court entered summary judgment in favor of all of the appellees, and the Court of Appeals affirmed. Green Acres Trust v. London, 142 Ariz. 12, 688 P.2d 658 (App. 1983).
Green Acres petitioned for review of the Court of Appeals' decision. We granted review to resolve issues concerning the extent and nature of the privilege enjoyed by attorneys in communications about litigation. We are satisfied with the resolution made by the Court of Appeals as to the non-lawyer appellee defendants, and we approve that portion of the opinion of the Court of Appeals. The remainder of the opinion concerning the liability of the lawyer defendants is vacated.
Considering the facts and inferences drawn from facts in a light favorable to Green Acres against whom summary judgment was entered, Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, Inc., 130 Ariz. 523, 637 P.2d 733 (1981), the following facts are relevant to our review of the case.
On Friday, March 5, 1976, the lawyer defendants met to review a draft of a class action complaint to be filed against Green Acres which challenged the particular sales technique employed by Green Acres to sell its "pre-paid funerals." See People ex rel.
Based in part on information obtained from a draft of the complaint and conversations held with the lawyer defendants, Ms. Jensen wrote an article describing the grounds of the class action suit. She quoted the clients and lawyer defendants, and unfavorably characterized the manner in which Green Acres marketed their "prepaid funerals." The Gazette published the article on the following Monday, March 8, 1976, the same day the lawyer defendants filed the class action complaint.
In due course, Green Acres sued the class action clients and lawyer defendants for defamation based on communications made by the lawyer defendants to Ms. Jensen. Green Acres did not, however, name Ms. Jensen nor her employer as party defendants. Green Acres' complaint alleged that the clients authorized, and the lawyer defendants published, the following statements by providing a copy of the drafted complaint and through conversations with Ms. Jensen:
The trial court entered summary judgment in favor of the defendants. The Court of Appeals affirmed, finding that both an absolute and a qualified privilege to defame protected the lawyer defendants and supported the entry of summary judgment. The court reasoned that the primary requirement for the absolute privilege was pertinence of the communication's content to the proposed or pending judicial proceeding. The court found such pertinence in the oral statements and the written statements contained in the drafted complaint. Finally, the court found a qualified privilege to defame "because the information affected an important interest of the newspaper reporter, i.e., investigating and reporting purported fraudulent business practices, and the comments were made in response to the reporter's request for information." 142 Ariz. 12, 688 P.2d 658.
We consider two issues raised by the petition:
As a defense to an action for defamation, the law recognizes that "conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation." Prosser, Law of Torts (4th ed. 1971) § 114, p. 776 (footnote omitted). This protection from liability is described as "privilege." There are two classes of privileges, "absolute" and "qualified." The absolute privileges created by law are based upon the recognition that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest. Restatement (Second) of Torts, Chapter 25,
In the area of absolute privileges one of the most common is that involving the participant in judicial proceedings. The socially important interests promoted by the absolute privilege in this area include the fearless prosecution and defense of claims which leads to complete exposure of pertinent information for a tribunal's disposition. Prosser, Law of Torts (4th ed. 1971) § 114 p. 777-81. The privilege protects judges, parties, lawyers, witnesses and jurors. The defense is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the defense. Id. Whether the privilege exists is a question of law for the court, Restatement (Second) of Torts, § 619, and may be properly raised in a motion to dismiss, if the facts establishing the occasion for the privilege appear in the pleadings, Sierra Madre Development, Inc. v. Via Entrada Townhouses Assn., 20 Ariz.App. 550, 514 P.2d 503 (1973), or in a motion for summary judgment. See Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (App. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981).
In various settings, Arizona courts have applied the absolute privilege to defame in connection with judicial proceedings. See Bailey v. Superior Court, 130 Ariz. 366, 636 P.2d 144 (App. 1981) (statements contained in complaint filed with Commission on Judicial Qualifications); Drummond v. Stahl, supra, (statements contained in motion filed to compel withdrawal of counsel and complaint filed with State Bar of Arizona); Sierra Madre Development, Inc. v. Via Entrada Townhouses Assn., supra (statement contained in complaint filed); Todd v. Cox, 20 Ariz.App. 347, 512 P.2d 1234 (1973) (statements contained in affidavit attached to motion filed for new trial); Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519 (1971) (statements contained in filed lis pendens, in context of slander of title action). In order to fall within the privilege, the defamatory publication must relate to, bear on or be connected with the proceeding. Bailey v. Superior Court, supra, 130 Ariz. at 368, 636 P.2d at 146; Drummond v. Stahl, supra, 127 Ariz. at 125, 618 P.2d at 619. The defamatory content of the communication need not be "strictly relevant," but need only have "some reference to the subject matter of the proposed or pending litigation...." Restatement (Second) of Torts § 586, Comment c.
An attorney's absolute privilege to defame in connection with a judicial proceeding is addressed by Restatement (Second) of Torts § 586, which provides:
An attorney is protected by the absolute privilege because "[t]o subject him to actions for defamation would fetter and restrain him in the fearless discharge of the duty which he owes to his client, and which the successful administration of justice demands." Veeder, Absolute Immunity In Defamation: Judicial Proceedings, 9 Col. L.Rev. 463, 482 (1909). As an immunity
While we have not addressed the application of the absolute privilege to this kind of extra-judicial communication, other authorities have considered the "press conference" context and decided against the application of the privilege to communications made in that setting. Assay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir.1979); Bradley v. Hartford Accident & Indemnity Co., supra; Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54 (1962); Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977); Restatement (Second) of Torts § 586, Reporter's Note, Appendix p. 517 ("The absolute privilege does not extend to a press conference."); Prosser, supra, § 114, p. 781 ("It is clear, however, that statements given to the newspapers concerning the case are no part of a judicial proceeding, and are not absolutely privileged." (footnote omitted)); L. Eldredge, The Law of Defamation, § 73H, p. 355-356 (1978). These authorities generally conclude that since publication to the news media lacks a sufficient relationship to judicial proceedings, it should not be protected by an absolute privilege. See Asay v. Hallmark Cards, Inc., supra, 594 F.2d at 697.
The lawyer defendants maintain, and the Court of Appeals agreed, that Johnston v. Cartwright, 355 F.2d 32 (8th Cir.1966), established a reasonable rule which recognized an absolute privilege for attorney statements to newspaper reporters concerning litigation which was about to be pursued. The rule in the Johnston case has not survived in its own circuit. In Asay v. Hallmark Cards, supra, the 8th circuit took a different view on the applicability of the privilege defense to statements made to the news media concerning litigation. The Asay court concluded that the application of the absolute privilege defense was dependent upon an analysis of the occasion for the communication and the substance of the communication. Id. 594 F.2d at 697. Focusing on the occasion of the statements, the Asay court concluded that since "[p]ublication to the news media is not ordinarily sufficiently related to a judicial proceeding to constitute a privileged occasion," the absolute privilege should not immunize such publication to the media. Id. The court found that this conclusion harmonized with the public policy underlying the privilege:
Id. at 698. We conclude that the Asay ruling represents the better position considering the competing interests to be protected. We believe that both content and manner of extra-judicial communications must bear "some relation to the proceeding." The requirements of Asay
In this case, the recipient of the communications, the newspaper reporter, had no relation to the proposed class action.
Finally, the lawyer defendants argue that extending the protection of the absolute privilege in this case would be consistent with their ethical duty to effectively represent their clients. To the contrary, we consider their conduct to be inconsistent with our rules of ethics. Two ethical tenets directly counsel against the publicity courted by lawyer defendants. First, lawyers must avoid causing injury to their opponents.
Schulman v. Anderson Russell Kill & Olick, P.C., 117 Misc.2d 162, 171, 458 N.Y.S.2d 448, 455 (Sup.Ct. 1982), quoting Model Code of Professional Responsibility EC 7-10 (1979) (emphasis in original). In addition, a lawyer may not make or participate in making an extra-judicial statement which he expects will be disseminated by means of public communication which will likely interfere with the fairness of an adjudicative proceeding. DR 7-107(G), Rule 29(a), Rules of the Supreme Court, 17A A.R.S. These two principles, avoiding unnecessary harm and extra-judicial communications, do not affect a lawyer's ability to further his client's interest. Indeed, inflicting unnecessary harm and defaming the adversary during a press conference cannot be considered as legitimately advancing a client's interest. Therefore, by denying the absolute privilege in this case, we do not curtail zealous representation. We simply decide that "an attorney who wishes to litigate his case in the press will do so at his own risk." Bradley v. Hartford Accident & Indemnity Co., supra, 30 Cal. App.3d at 828, 106 Cal. Rptr. at 724, citing Kennedy v. Cannon, supra.
While we decline to extend the absolute privilege to these circumstances, we do not foreclose absolute privilege protection for certain types of statements published before the initiation of proceedings. Restatement (Second) of Torts § 586 expressly includes communications made preliminary to or in the institution of a judicial proceeding. Comment e to that section cautions that
See Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 531, 373 N.E.2d 215, 218 (1978) (absolute privilege not extended to letter where there was "no indication that the attorney seriously contemplated a judicial proceeding in good faith"). The various applications of the absolute privilege to pre-proceeding communications include a demand letter sent to representative of plaintiff's insurer, Chard v. Calton, 277 Or. 109, 559 P.2d 1280 (1977) a letter sent to potential defendant, Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976); Lerette v. Dean Witter Organization, Inc., 60 Cal.App.3d 573, 131 Cal.Rptr. 592 (1976), a letter sent to investors which sought information relating to prospective proceeding, Russell v. Clark, 620 S.W.2d 865
Russell v. Clark, supra, 620 S.W.2d at 868. Although we recognize that the absolute privilege must protect some kinds of communications uttered preliminary to a judicial proceeding, we find no reason in the case at bar to extend an absolute privilege to the lawyer defendants for the communications made by them to the newspaper reporter. We hold that the lawyer defendants were not protected by an absolute privilege for the oral and written communications published by them to the newspaper reporter.
The qualified or conditional privilege is another defense to a defamation action. It is based on the social utility of protecting statements required to be made in response to a legal, moral or social duty. Aspell v. American Contract Bridge League, 122 Ariz. 399, 595 P.2d 191 (App. 1979); Prosser, supra, § 115, at 786. It differs from the defense of absolute privilege in that "the interest which the defendant is seeking to vindicate is regarded as having an intermediate degree of importance, so that the immunity conferred is not absolute, but is conditioned upon publication in a reasonable manner and for a proper purpose." Id. at 785-86. Absent a proper purpose or reasonable manner of publication, the defense fails. The privilege "give[s] protection from liability only when exercised for the purpose for which [it] is given and with reasonable care that no more harm shall be done to the interests of others than is necessary to accomplish the end for which the privilege is given." Restatement (Second) of Torts, Chap. 25, Topic 3, Title A, "Occasions Making a Publication Conditionally Privileged," p. 258.
In general, Arizona law establishes a two-part analysis for determining whether a qualified privilege exists. The court must first determine whether a privileged occasion arose, and, if so, whether the occasion for the privilege was abused. Roscoe v. Schoolitz, 105 Ariz. 310, 464 P.2d 333 (1970). Whether a privileged occasion arose is a question of law for the court, and whether the occasion for the privilege was abused is a question of fact for the jury. Id. at 313-14, 464 P.2d at 336-37. To establish that a privileged occasion arose, a defamation defendant must establish that the circumstances in which the communication was made created an obligation to speak. Id. at 313, 464 P.2d at 336. See Prosser, supra, § 115 at 786.
Once a defendant demonstrates that a conditional privilege may apply, the plaintiff may then prove an abuse of that privilege either by proving publication with "actual malice" or by demonstrating excessive publication. Selby v. Savard, 134 Ariz. 222, 225-26, 655 P.2d 342 (1982); Restatement (Second) of Torts §§ 600, 604. An abuse through "actual malice" occurs when the defendant makes a statement knowing its falsity or actually entertaining doubts about its truth. Id. Abuse through excessive publication results from publication to an unprivileged recipient not reasonably necessary to protect the interest upon which the privilege is grounded. Restatement (Second) of Torts § 604, Comment a.
The lawyer defendants point to the circumstances of this case: a press interview during which they published information assertedly important to the general public because it warned them about a fraudulent business. The lawyer defendants argue
Protection of Interest of Recipient or a Third Person
The first qualified privilege advanced by the defendants protects communications published by someone under a legal duty or a social obligation to protect others. Prosser, supra, § 115, at 787; Restatement (Second) of Torts § 595. The broadness of this formula is due to the "infinite variety" of fact situations which are traditionally collected under this heading. Prosser, supra, § 115, at 787-89. The privilege applies to contexts like summoning a police officer, describing a former employee to a prospective employer, or protecting a family member. See, id. This type of privilege applies to reports published by private investigators to their employer. Roscoe v. Schoolitz, supra; see Restatement (Second) of Torts § 595, Comment d (privilege applies to statements made for the protection of domestic interest).
The Court of Appeals concluded that publication to the newspaper reporter was qualifiedly privileged because the information affected an important interest of the reporter, i.e., investigating and reporting purported fraudulent business practices, and the comments were made in response to Jensen's requests for information. Referring to Restatement (Second) of Torts § 595, the court apparently felt that the occasion was privileged because "publication [was] ... within the generally accepted standards of decent conduct."
We reach the opposite conclusion, since publication by the lawyer defendants to the newspaper reporter was contrary to the standards of conduct which govern lawyers. As we noted earlier, under our rules of ethics, the lawyer defendants had a duty not to participate in the press conference, particularly when it was obvious that widespread publication would result which might interfere with the opposing party's opportunity for a fair trial. In these circumstances, the lawyer defendants' conduct was far from advancing acceptable standards for attorneys.
While providing information to representatives of the media is socially commendable, this function is normally performed without regard to any particular concept of duty or obligation. Statements to reporters are not generally entitled to any more protection than statements to other members of the community.
We conclude that this qualified privilege is inapplicable to these facts.
The second qualified privilege urged by the defendants applies where an occasion arises in which "one is entitled to learn from his associates what is being done in a matter in which he has an interest in common with them." Restatement (Second) of Torts § 596, Comment c. This privilege applies in a context like associates in a commercial enterprise, Prosser, supra, § 115, at 789, users of mercantile agencies, Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, Inc., supra, co-owners of property, Restatement (Second) of Torts, § 596 Comment d, or co-members of the board of trustees of a school district. See, Connor v. Timothy, 43 Ariz. 517, 33 P.2d 293 (1934). In these contexts, each participant in the association, group or organization depends on other participants to supply relevant information. Through the qualified privilege, courts facilitate the exchange of information by protecting statements about matters affecting the goals of that organization or group. See Aspell v. American Contract Bridge League, supra (privilege protects statements published by bridge club members about disciplining of one of the members).
Reports of Public Proceedings
The last qualified privilege advanced by the defendants is that found in § 611 of the Restatement (Second) of Torts, which provides:
Judicial recognition of this privilege is based on the ambitious goal of informing the public:
Prosser, supra, § 118 at 830-831 (footnotes omitted).
The privilege to fairly and accurately report about public proceedings differs from other conditional privileges. It is termed a "special" privilege because it does not depend on the occasion giving rise to the publication like the two previous privileges. Restatement (Second) of Torts § 611, Comment a. It also differs because the publisher may report statements known to be false so long as the publisher fairly and accurately describes those statements. Id., Comment b; see Eldredge, supra, § 79, p. 421. Ordinarily the privilege would apply to the news media, those in the business of transmitting the news, but the privilege is not limited to the media. Id., Comment c. Anyone may describe what transpired at a public proceeding so long as the publisher provides a fair and accurate rendition. Id. One exception to this wide application is the speaker who by design uses the privilege to republish defamation he previously made during the public proceeding. Id. The privilege does not sanction self-serving re-publication. The types of proceedings about which one may comment are varied. Official proceedings are the easier cases, but the privilege also applies to open meetings which are nongovernmental. Id., Comment i. If the proceeding is genuinely open, so that the speaker sees what any member of the public could have seen, and the meeting deals with a matter of public interest, the privilege applies. For example, in Phoenix Newspapers, Inc. v. Choisser, 82 Ariz. 271, 312 P.2d 150 (1957), we extended this qualified privilege to a newspaper article which reported the statements made by candidates for mayor and council in a public meeting held by the Junior Chamber of Commerce.
In addition to the types of proceedings, the boundaries of the privilege are defined by the manner in which those proceedings are reported. The report must be fair, and it must be accurate. Accuracy means "substantially correct," while fair means balanced. Restatement (Second) of
The privilege to report about public proceedings has been extended to reports which described the contents of pleadings which have been filed with the court. See Newell v. Field Enterprises, Inc., supra; Campbell v. New York Evening Post, Inc., 245 N.Y. 320, 157 N.E. 153 (1927). Two different privileges operate in this context: the absolute privilege protects the lawyer for the contents of the pleading while the category of qualified privilege protects the reporter in reporting the contents of the pleading. "Although it might be thought that the privilege to report should be absolute when the statements reported are themselves absolutely privileged, the policy of encouraging freedom of action by the participants is not applicable to the report, and a qualified privilege is therefore appropriate." Note, Developments in the Law — Defamation, 69 Harv.L.Rev. 875, 928 (1956).
The lawyer defendants argue that their "press conference" communications amounted to a fair and accurate report of the contents of the class action complaint. Green Acres counters that the communications went far beyond the borders of the complaint. We do not reach this dispute because we conclude that a pleading must be filed with the court before this privilege may apply to reports which describe the pleading. Though jurisdictions are split over whether filing a complaint is enough in itself, or whether some judicial action must occur before the privilege can attach, see Annotation, 20 A.L.R. 4th 576 (1983), no dispute exists over the minimal requirement of filing. Absent filing, the drafted complaint was not a "public" matter.
The "press conference" in the lawyer defendants' office was little more than a private meeting and "the privilege does not extend to a report of a private meeting, not open to the general public...." Restatement (Second) of Torts § 611, Comment i. Obviously, there could not be a report of an official or public proceeding absent the existence of that proceeding. The lawyer defendants are not entitled to the qualified privilege to defame under § 611.
We conclude that no absolute or qualified privilege to defame protected the lawyer defendants in their communications with the newspaper reporter under the circumstances of this case. We therefore vacate that part of the opinion of the Court of Appeals granting an absolute or qualified privilege to the lawyer defendants' communications. The judgment of the trial court in favor of the lawyer defendants is reversed, and the action against those defendants is remanded to the trial court for further proceedings consistent with this opinion.
GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.
SUPPLEMENT TO OPINION
HOLOHAN, Chief Justice.
In the motion for reconsideration filed by the defendants Valder, they contend that the role of attorney Valder in the events giving rise to this litigation has been misstated.
It must be noted that the case was resolved in the superior court on summary judgment, and the contested facts in the case have never been resolved by trial. This court, however, following the well recognized rule on appeal stated the evidence, as well as all inferences reasonably to be drawn from the evidence, in the light most favorable to the party against whom the summary judgment was rendered. Farmers Ins. Co. of Arizona v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983); Portonova v. Wilkinson, 128 Ariz. 501, 627 P.2d 232 (1981).
The participation or lack of participation by attorney Valder in the events occurring
The motion for reconsideration is denied.
GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.