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Law Firm’s Filing of a Lis Pendens Absolutely Privileged

In Scully v. Novack & Macey, LLP, 2022 IL App (1st) 210319-U, the Illinois Appellate Court affirmed the dismissal of slander of title claims against the Defendant law firm. The law firm represented some of the parties to a family feud over inherited real estate. During the litigation, the law firm, under instructions from its client, placed a lis pendens on real property. The claims for slander of title against the law firm were dismissed under the absolute litigation privilege. A lis pendens is a public document filed with the Recorder of Deeds that gives notice to any purchaser that the property is subject to a claim in litigation.

As the court explained, “Illinois’s absolute litigation privilege derives from section 586 of the Restatement (Second) of Torts. That section provides, ‘An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.’ ¶ 42.

The absolute litigation privilege barred any claim against the law firm for its action in filing the lis pendens. The court also noted that the attorneys had a valid reason to file the lis pendens. ¶ 45. Because the lis pendens related to the pending litigation and served the interests of their clients, the law firm’s actions were absolutely privileged.

Comment: the litigation privilege is extraordinarily important to protect attorneys from becoming defendants in contested business disputes and other contentious lawsuits. This opinion should be published.

Ed Clinton, Jr.

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