Kentucky High Court Nixes Attorney Lawsuits Alleging Defamation, Slander Against Those Making Unfounded Claims About Them In Official Bar Complaints

The Associated Press reports:

• Statements made in official complaints about attorneys cannot be used as the basis for a civil suit alleging defamation or slander, a split Kentucky Supreme Court ruled Thursday. The court, in a 4-3 vote, ruled that anything said in an official complaint to the bar association is protected speech and the person filing the complaint cannot be sued for the comments.
• Justice Bill Cunningham, writing for the majority, said protecting such comments creates an atmosphere where people do not have to worry about being sued or attacked for making a complaint.
• “It is the threat and potential for retaliatory litigation — of any kind — that serves as a disincentive to filing a bar complaint,” Cunningham wrote. “We must encourage persons with complaints against attorneys to submit such information to the KBA for proper investigation and examination.”

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• The case arose out of a bar complaint filed by GMAC Mortgage Corp., against attorney Noel Mark Botts. The complaint concerned Botts’ handling of a foreclosure. The opinion doesn’t give details of the complaint. A trial commissioner dismissed the complaint after determining the Kentucky Bar Association failed to prove any misdeeds.
• Botts sued GMAC and the law firm of Morgan & Pottinger, alleging wrongful use of civil proceedings, defamation and slander, abuse of process, fraud and outrageous conduct.
• Cunningham noted that at least 28 states have rules banning civil suits based on the contents of a bar association complaint. The concept is to allow bar associations to be “self-regulating” by protecting complaintants from civil liability, Cunningham wrote.
• “A lesser grant of immunity would have a chilling effect on the reporting of attorney misconduct,” Cunningham wrote.
• The majority sent the case back to Mercer Circuit Court so the judge can determine if any of Botts’ complaints are based on statements made outside the bar complaint process.

For the story, see Lawyers may not sue complaining clients.

For the ruling, see GMAC Mortgage Corporation v. Botts, ___ S.W .3d ___ (Ky. April 21, 2011).