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Repeat Post – Witness Who Testified Against Lawyer in Disciplinary Hearing Immune From Defamation Claim

The case is Bar Counsel v. Peter Farber, SJC 11171 (Massachusetts Supreme Judicial Court).  This post is a repeat from a few years ago. I regard the opinion highly and think every lawyer should read it before taking any action adverse to an unhappy client.

Farber was the subject of an attorney disciplinary complaint. The complaining party, G. Russell Damon, testified against Farber. Damon accused Farber of wrongful conduct in connection with a real estate transaction. The disciplinary proceeding resulted in a reprimand against Farber.

Farber then brought a defamation case against Damon. Damon argued that he was immune because he testified under oath in a public proceeding. Damon took no other action to publicize his testimony.

After Farber brought his lawsuit, the Bar Counsel brought an action for declaratory judgment against Farber seeking a declaration that Damon was immune from civil liability. A single justice then ordered that the case be stayed pending a decision by the full Supreme Judicial Court.

The Supreme Judicial Court dismissed the complaint based on the text of the relevant Massachusetts rule:

“Discussion. 1. Interpretation of S.J.C. Rule 4:01, § 9. Section 9 provides in relevant part: “Immunity.

“(1) Complaints submitted to the Board or to the bar counsel shall be confidential and absolutely privileged. The complainant shall be immune from civil liability based upon his or her complaint;; provided, however, that such immunity from suit shall apply only to communications to the Board or the bar counsel and shall not apply to public disclosure of information contained in or relating to the complaint.

“(2) The complainant and each witness giving sworn testimony or otherwise communicating with the Board or the bar counsel during the course of any investigation or proceedings under this rule shall be immune from civil liability based on any such testimony or communications;; provided, however, that such immunity from suit shall apply only to testimony given or communications made to the Board or the bar counsel and shall not apply to public disclosure of information attested to or communicated during the course of the investigation or proceedings.”

Farber argued that the immunity extended only to the actual complaint filed and the hearing testimony. Therefore, when the matter became public (as a result of the reprimand) the complaining witness lost immunity. The Court rejected this argument held that Damon, the complaining witness had absolute immunity from liability for statements in his complaint or in his testimony at the disciplinary hearing.

This is a thoughtful opinion, based on sound public policy. In my personal opinion, no lawyer should file such a case (even if it were permitted) because it will only give the disciplinary case more publicity.

Edward X. Clinton, Jr.


www.clintonlaw.net