Adams v. Peck

Davidson, J., delivered the opinion of the Court. This case presents the novel question whether an absolute privilege applies to a defamatory statement published in a document which is prepared for possible use in connection with a pending judicial proceeding but which has not been filed in that proceeding. In July, 1976, in the Circuit Court for Baltimore County, the appellant, Peter R. Adams (father), and Caryl W. Adams (mother), were engaged in a contested divorce proceeding. In August, 1976, they entered into a separation agreement in which the mother was granted custody of the two minor children and the father was granted visitation rights.

In 1977, the mother raised questions concerning the advisability of continuing the father’s visitation rights. The mother’s attorney referred her and the children to the appellee, Alan H. Peck, M.D. (psychiatrist), for an evaluation. On 17 February 1977, the psychiatrist sent a written report to the attorney in which he expressed the opinion that the father had abused one of the children, and that he was "an ill man and in definite need of psychiatric treatment.” Additionally, the psychiatrist urged "that all visitations with the father stop, and the father not be allowed to be around the children.” Thereafter, the mother filed a Petition for Modification of Visitation Rights.

On 30 January 1978, in the Superior Court of Baltimore City, the father filed a declaration alleging that the psychiatrist had "falsely and maliciously defamed him” by ³ stating in a letter that he was ill and needed psychiatric treatment. On 19 July 1978, the psychiatrist filed a motion for summary judgment on the ground that the allegedly defamatory statement was absolutely privileged as a matter of law because it was made in connection with the pending divorce litigation. On 14 November 1978, the trial court granted the motion for summary judgment and entered judgment in the psychiatrist’s favor. The father appealed to the Court of Special Appeals, which affirmed the trial court’s judgment.

Adams v. Peck, 43 Md. App. 168 , 403 A.2d 840 (1979). We granted a writ of certiorari and shall affirm. In Maryland, judges, attorneys, parties and witnesses are absolutely privileged 1 to publish defamatory matters during the course of a judicial proceeding. Korb v. Kowaleviocz, 285 Md. 699, 701-04 , 402 A.2d 897, 898-99 (1979); Hunckel v. Voneiff, 69 Md. 179, 193 , 14 A. 500, 504 (1888) ; Maulsby v. Reifsnider, 69 Md. 143, 162-64 , 14 A. 505, 510-11 (1888).

See Kennedy v. Cannon, 229 Md. 92, 97 , 182 A.2d 54, 57 (1962) (dicta). See generally Prosser, Law of Torts, § 114 (1971). This absolute privilege protects the person publishing the defamatory statement from liability even if his purpose or motive was malicious, he knew that the statement was false, or his conduct was otherwise unreasonable. Maulsby, 69 Md. at 164 , 14 A. at 511 .

See Kennedy, 229 Md. at 97 , 182 A.2d at 57 . It extends not only to defamatory statements made in the courtroom during the course of the trial, Korb, 285 Md. at 704 , 402 A.2d at 899 ; Maulsby, 69 Md. at 164 , 14 A. at 511 , but also to such statements published in documents which have been filed in a judicial proceeding. DiBlasio v. Kolodner, 233 Md. 512, 520-23 , 197 A.2d 245, 250-51 (1963) (declaration in prior suit); Bartlett v. Christhilf, 69 Md. 219, 227 , 14 A. 518, 520 (1889) (petition); Kerpelman v. Bricker, 23 Md. App. 628, 634 , 329 A.2d 423, 427 (1974) (letter of complaint to then ⁴ Grievance Committee of Maryland State Bar Association initiating a "judicial proceeding”). See Kennedy, 229 Md. at 97 , 182 A.2d at 57 .

See, e.g., Gilpin v. Tack, 256 F. Supp. 562, 566 (W.D. Ark. 1966) (interrogatories); O’Barr v. Feist, 292 Ala. 440 , 296 So. 2d 152, 154, 156-57 (1974) (physician’s letter); Todd v. Cox, 20 Ariz. App. 347 , 512 P.2d 1234, 1235-36 (1973) (affidavit); Albertson v. Raboff, 46 Cal. 2d 375, 380-81 , 295 P.2d 405, 409 (1956) (notice of lis pendens); McDonald v. Lakewood Country Club, 170 Colo. 355, 366-67 , 461 P.2d 437, 443 (1969) (criminal information); Zirn v. Cullom, 187 Misc. 241 , 63 N.Y.S.2d 439, 440 (1946) (pleading in prior suit); Jarman v. Offutt, 239 N.C. 468, 472-74 , 80 S.E.2d 248, 251-53 (1954) (affidavit). See generally Annotation: Libel and Slander: Application of Privilege Attending Statements Made in Course of Judicial Proceedings to Pretrial Deposition and Discovery Procedures, 23 A.L.R.3d 1172 (1969). This Court has not previously considered whether an absolute privilege applies to defamatory statements published in documents prepared for possible use in connection with a pending judicial proceeding but which have not been filed in that proceeding.

However, in Kennedy, 229 Md. at 97 , 182 A.2d at 57 , we stated in dicta: "[Ajbsolute immunity extends ... for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.” (Emphasis added.) We shall here hold that ordinarily an absolute privilege applies to a defamatory statement published in a document which is prepared for possible use in connection with a pending judicial proceeding but which has not been filed in that proceeding. Courts in other jurisdictions which have considered similar questions agree. E.g., Theiss v. Scherer, 396 F.2d 646, 649-50 (6th Cir. 1968) (attorney’s letter to another attorney); McLaughlin v. Copeland, 455 F. Supp. 749, 751-52 (D. Del. 1978) (attorney’s letter to other attorneys); Smith v. Hatch, 271 Cal. App. 2d 39, 45 , 76 Cal. ⁵ Rptr. 350, 354-55 (1969) (attorney’s letter to client); Anderson v. Matz, 67 Ill.

App. 3d 175 , 384 N.E.2d 759, 761 (1978) (physician’s report to insurance company); Middlesex Concrete Products & Excavating Corp. v. Carteret Indus. Ass’n, 68 N.J. Super. 85, 90-92 , 172 A.2d 22, 24-26 (1961) (consultant’s report to attorney); Zirn, 187 Misc., 63 N.Y.S.2d at 440-41 (defense attorney’s letter to plaintiff); Vasquez v. Courtney, 276 Ore. 1053, 1055-56 , 557 P.2d 672, 673 (1976) (sheriffs letter to parole officer conducting presentence investigation); Beezley v. Hansen, 4 Utah 2d 64, 286 P.2d 1057, 1058 (1955) (attorney’s unfiled deposition). See also Restatement (Second) of Torts § 588, Comment a (1977). The question whether a defamatory statement should be absolutely privileged involves a matter of public policy in which the public interest in free disclosure must be weighed against the harm to individuals who may be defamed.

See Maurice v. Worden, 54 Md. 233, 253 (1880). The underlying rationale for according an absolute privilege to the defamatory statements made in court by participants in judicial proceedings or to such statements published in documents which have been filed is that such a privilege is necessary to the proper administration of justice. The ultimate purpose of the judicial process is to determine the truth. The investigation, evaluation, presentation and determination of facts are inherent and essential parts of this process.

If this process is to function effectively, those who participate must be able to do so without being hampered by the fear of private suits for defamation. As stated by this Court in Bartlett, 69 Md. at 226-27 , 14 A. at 520 : "[Defamatory]