Adams v. Peck

Wilner, J., delivered the opinion of the Court. Peter R. Adams appeals from the summary judgment entered by the Superior Court of Baltimore City that terminated his libel action against Alan H. Peck. The question that we must decide is whether the privilege that attaches to testimony given by a witness in a judicial proceeding extends to pre-trial communications between a potential witness gnd counsel that relate to matters at issue in pending litigation. ¹⁶⁹ It is unfortunate that the relevant facts surrounding this controversy are not set forth more directly and concisely in the record, especially as this comes to us from the granting of summary judgment. From the various pleadings, however, and particularly from the document containing the allegedly libelous statement, which' was attached as an exhibit to appellant’s Declaration, the facts appear to be these.

After a contentious and unhappy marriage, Dr. Adams and his wife separated on July 28,1976; and on that day a bill and a cross-bill for divorce were filed in the Circuit Court for Baltimore County. The record does not reveal the grounds alleged in these pleadings or the extent to which collateral matters were in dispute. On August 9,1976, they entered into a “formal” separation agreement under which Mrs. Adams was given custody of their two young children, subject to appellant’s right of visitation for up to fifteen hours a week. In early 1977, the two children — young boys aged 2% and 4 — began to relate to Mrs. Adams bizarre and obviously disturbing tales of sexual activity and molestation suffered at the hands of their father during their visits with him.

Mrs. Adams consulted the attorney representing her in the divorce proceedings, Albert S. Barr, III, who referred her to the appellee, Dr. Peck, for a pyschiatric evaluation of the children. On February 16, 1977, Dr. Peck interviewed Mrs. Adams and the older of the two boys. During this interview, the child described in considerable detail examples of sexual contact and activity occurring between the father and the children, at the father’s insistence, that, if true, can only be described as deliberate, abusive, and grossly abnormal. From what he heard and observed, Dr. Peck concluded that the child was telling the truth; one episode in particular that the child described, Dr. Peck said, “strikes me as something which he could not make up, but probably did witness.” Accepting these stories as credible, Dr. Peck concluded: “I would urge that he be kept away from his father on a definite basis for a considerable length of time if this story is true, and I have no reason not to believe this.

His father is an ill man and in definite ¹⁷⁰ need of psychiatric treatment. I have advised Mrs. Adams to keep [the child] from the father and to keep a close eye on him. I will observe him closely over the next few weeks and if I feel this has done definite and permanent harm to him, then I would feel intensive psychiatric therapy with a competent therapist would be warranted. Again I urge that all visitations with the father stop, and the father not be allowed to be around the children.” This statement was the concluding paragraph in a three-page report that Dr. Peck sent to Mr. Barr.

It does not appear that he sent the report to anyone else, although it is alleged that Mr. Barr circulated it to his client, to the child’s pediatrician, to appellant’s attorney, to a judge of the court in which the divorce proceedings were then pending, and possibly to other court personnel. 1 Within a month after receipt of Dr. Peck’s report, a petition was filed to modify appellant’s visitation rights. 2 The record in this case does not reveal whether that petition has been heard, if so whether Dr. Peck appeared as a witness or whether his report was offered into evidence, or what, if any, changes were made in appellant’s visitation privileges. Neither does it reveal the status of the divorce proceedings. This proceeding was commenced on January 30,1978 (while the divorce proceeding was still pending), when appellant sued Dr. Peck for $1,500,000 in damages for “falsely and maliciously causing] to be typed or printed, and circulated and published, a certain paper writing in the form of a so-called ‘Psychiatric Evaluation’, which paper writing falsely and maliciously defamed the plaintiff herein.” Although the entire report was attached as an exhibit to the Declaration, ¹⁷¹ the part of it singled out for attention and quoted in the Declaration itself was the one sentence: “His father is an ill man and in definite need of psychiatric treatment.” Summary judgment in favor of Dr. Peck was granted upon the sole basis that the report, even if defamatory, was absolutely privileged; and that, as noted, is the issue now before us. The fountainhead of the Maryland law in this area is a trilogy of cases decided by the Court of Appeals on the same day — June 13, 1888.

The first of these cases, Maulsby v. Reifsnider, 69 Md. 143 , involved the extent to which words spoken by an attorney in the course of a judicial proceeding were privileged. There was no apparent dispute as to the existence of a privilege; the question was whether it was an absolute or a qualified one. Based upon the English precedent cited by the Court, the difference was this: if the privilege was absolute, as defined and applied in Munster v. Lamb, L.R. 11 Q.B.Div. 588 (1883), “no action will lie against counsel for slanderous words spoken with reference to, and in the course of, an inquiry before a judicial tribunal, although they were uttered maliciously and without any justification or even excuse, and from personal ill-will towards the person slandered.” See 69 Md. at 154 . In other words under an absolute privilege the test was merely whether the words sued on were spoken in the course of a judicial proceeding; if so, they were not actionable.

Under a qualified privilege, there was a second criterion that also had to be met: not only must the words be spoken in the course of a judicial proceeding, they must, as well, have been relevant to that proceeding. See, for example, Mackay v. Ford, 5 Hurl. & Nor. 790, cited 69 Md. at 154 . After an extensive and learned review of these two approaches and the English cases from which they arose, a majority of the Court opted for the qualified privilege. “[W]e cannot accept”, the Court said at p. 162, “the absolute and unqualified privilege laid down in Munster v. Lamb.’’ Thus, the Court went on to say, “if counsel in the trial of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or ¹⁷² connection with, the case before the court, he is and ought to be answerable in an action by the party injured.” 3 The second case, Hunckelv. Voneiff, 69 Md. 179 , concerned the extent of the privilege possessed by a witness; and, in contrast to the view taken in Maulsby with respect to counsel, the Court concluded that an absolute privilege existed. 4 At p. 187, the Court stated quite succinctly the basis for this policy: “The case now before us is not that of an advocate but of a witness, and in our opinion it is of the greatest importance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may say while giving their testimony.” In reaching this conclusion, the Court squarely aligned itself with the English courts, which also had adopted an absolute privilege for witnesses, notwithstanding that the weight of American authority “is in favor of a much greater restriction upon the privilege than is sanctioned by the English decisions.” 69 Md. at 193.

But, continued the Court: “[W]e are not controlled by any decision of our own courts, and are at liberty to settle the law for this State according to our best judgment. After a most careful consideration of the subject, we are convinced that the privilege of a witness should be as absolute as it has been decided to be by the English authorities we have cited, and we accordingly adopt the law on this subject as they have laid it down.” Id. at 193. Because what the Court in effect did was to incorporate the ¹⁷³ English law by reference, without stating the underlying principles in its own terms, it becomes important to note that the English decisions relied upon all dealt with words spoken from the witness stand. The rationale expressed for the rule by the various English authorities was essentially that witnesses appear in court under compulsion —' in obedience to the authority of the law and in discharge of a public duty — and that, in testifying, they are subject to the control of the court and to the penalty of perjury if they speak falsely.

Indeed, in Seaman v. Netherclift, L.R.2.C.P.D. 53, quoted at some length by the Maryland Court, Chief Judge Cockburn, speaking for the English Court of Appeal, observed as a caveat to the absolute privilege: “But I agree that if in this case beyond being spoken maliciously the words had not been spoken in the character of a witness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected. I quite agree that what he says before he enters or after he has left the witness-box is not privileged, which was the question, in the case (Trotman v. Dunn, 4 Camp. 211,) before Lord Ellenborough.” Hunckel, supra, at 190 . (Emphasis supplied.) 5 ¹⁷⁴ At issue in Hunckel v. Voneiff was actual testimony; and thus the question of whether words spoken or written by a witness (or potential witness) in some other context — i.e., the issue presently before us — was not considered or decided by the Hunckel Court.

Nor, except for the nisi prius decision in Trotman v. Dunn in 1815, does it appear to have been directly addressed, other than by dicta, in the English decisions cited by that Court. We do not, therefore, consider the Court’s adoption of the English law “as they have laid it down” as necessarily adopting as well Lord Cockburn’s dicta, much less as conclusive precedent on the particular issue now at bar. The third case decided that day in 1888 was Bartlett v. Christhilf, 69 Md. 219 (1888). This involved the nature of a party-litigant’s privilege.

Bartlett and Christhilf, both attorneys, had been appointed receivers by the Circuit Court for Baltimore City. Christhilf subsequently filed a petition in the receivership proceeding alleging that Bartlett had wrongfully withheld assets from the receivers, had obstructed the collection of assets, had acted in contempt of the court’s authority, and had embezzled receivership assets. Before a hearing was held on this petition, the receivership action was settled and dismissed. Bartlett then sued Christhilf for libel and malicious abuse of court process.

Once again, the Court of Appeals reviewed the English cases and commentators which, it concluded (p. 226): “... hold that statements made in any of the pleadings or proceedings in a cause before a court having jurisdiction of the subject are absolutely privileged, even though made maliciously and falsely. This privilege, protecting against a suit for libel or slander, is founded upon what would seem to be a sound public policy which looks to the free and unfettered administration of justice, though as an incidental result it may, in some instances, afford ¹⁷⁵ an immunity to the evil disposed and malignant slanderer.” Id. at 226 . In the particular case, the Court did not deem it necessary to determine whether a litigant’s privilege was absolute or qualified — i.e., whether the privilege existed only if “the thing written has relation to the subject-matter undergoing judicial investigation” {Id. at 226) — because the petition at issue there did in fact relate to the receivership proceeding. Thus, even though Christhilf was not actually a party in the receivership case, his petition was protected by the privilege, whether absolute or qualified.

At page 227: “To allow such suits to prevail would most effectively deter every one from presenting a well-founded complaint for fear of being pursued with ‘infinite vexation.’ It is better, therefore, where the statements are false and knowingly false, to leave the party injured to the redress which the Criminal Court may apply, than to open the door for the institution of civil suits which may be successfully used as an efficient means to obstruct the full and fearless pursuit and administration of justice.” The development of the law in this area since 1888 has not been especially dramatic. What the Court has done, however, is to revise some of the semantic distinctions and to view the privilege possessed by counsel, witnesses, and parties as essentially the same and therefore as applying to both evidentiary and non-evidentiary statements. These revisions were announced in Kennedy v. Cannon, 229 Md. 92, 96 (1962), where, after quoting at some length from Maulsby , the Court observed that what was described there as a qualified privilege (for attorneys), “... reflects the view of a majority of the jurisdictions in this country, although the semantics in this area of tort law have changed somewhat since the date of the Maulsby case. What was characterized in that case as a qualified privilege for communications, conditioned on their being pertinent or relevant to a ¹⁷⁶ judicial proceeding, without regard to the motive of the speaker, is referred to by modern text writers and in case law as an absolute privilege.

(Citations omitted.) This absolute immunity extends to the judge as well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case. (Citations omitted.) An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or thé reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” (Emphasis supplied.) Kennedy, supra, at 96 . See also Di Blasio v. Kolodner, 233 Md. 512 (1964); Herring v. Citizens Bank & T. Co., 21 Md. App. 517 (1974); Kerpelman v. Bricker, 23 Md. App. 628 (1974). This is the current state of the Maryland law and, as the Kennedy Court noted, of the law generally throughout the nation.

The statement of a witness given in testimony or in pleadings, affidavits, depositions, “and other documents directly related to the case” are “absolutely” privileged. The rule is expressed this way in Restatement (Second) of Torts, § 588 (1977): “A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.” (Emphasis supplied.) Comment e to this section addresses, in particular, statements made prior to the actual commencement of the judicial proceeding. It says: “As to communications preliminary to a proposed judicial proceeding, the rule stated in this Section applies only when the communication has some ¹⁷⁷ relation to a proceeding that is actually contemplated in good faith and under serious considerations by the witness or a possible party to the proceeding. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.” 6 Counsel have referred us to no Maryland case (and indeed have suggested that there are none) in which the privilege of a witness, which is essentially a testimonial privilege, has been held applicable to pre-trial statements made to an attorney.

And, in the absence of any binding precedent, each side suggests that the case be determined on the basis of sound public policy. Naturally, they disagree on what that policy should be. Two opposing principles seem to be involved, both seeking to serve the same end: the truth-seeking function of the judicial process. Appellant urges that the privilege be limited to statements made under oath; otherwise, he says, there would be no effective constraint upon false and scandalous statements made by witnesses and potential witnesses.

The privilege becomes and remains functional, he suggests, only because, and to the extent that, there are collateral sanctions available to deter a witness from speaking falsely. To be sure, there is some measure of support for this view in Hunckel v. Voneiff and its English antecedents. Appellee, on the other hand, contends that denial of the privilege to pre-trial communications between potential witnesses and counsel ¹⁷⁸ would invite far more serious disruptions to the proper administration of justice by inhibiting the ability of counsel (and litigants) to gather evidence and prepare their cases for trial. The hypothesis here is that the effectiveness of the truth-seeking process is dependent primarily upon adequate pre-trial preparation; and, unless potential witnesses are protected against civil liability (and the harassment of lawsuits seeking to impose such liability), they will be most reluctant to share their knowledge and opinions except under the most formal, most expensive, and least efficient circumstances.

We note initially that there is ample precedent in the law for extending the testimonial privilege to unsworn pre-trial communications between potential witnesses and counsel. More important, the precedent, though not legally binding upon this Court, rests upon sound principles of law and public policy, and for that reason will be adopted by us. Given the proclivity of our Court of Appeals for following English decisions in this general area, perhaps the most significant case in this regard is Watson v. M’Ewan (1905) A C 480 (HL), decided by the House of Lords on appeal from the Court of Session, Scotland. The facts were these.

In October, 1901, the plaintiff, desirous of obtaining a separation from her husband on the ground of his cruelty, consulted the defendant, a physician, with a view of acquiring his testimony as to her poor condition. The defendant did indeed examine her, and he made notes of his findings. The plaintiff subsequently instituted suit against her husband. During the course of trial, the defendant and other physicians examined the plaintiff on her husband’s behalf. 7 The defendant reported “the results of his examination, his opinion of the case, and the nature of the evidence he was prepared to give” to the husband’s • agents.

At the same time, he “gave information to said parties as to certain matters which he alleged he had ascertained as the result of his prior examination” of the plaintiff, and showed his notes from that examination to the husband and his attorney. Later, the ¹⁷⁹