About the Course
Introduction
This CLE webinar will discuss the boundaries of the litigation privilege and attorney immunity, which are defenses to retaliatory civil actions and ethical complaints filed against attorneys and party opponents. The panel will review recent decisions and survey evidentiary and procedural issues that arise in these cases. As part of their analysis, the panel will review what tactics are ethically out of bounds under Model Rule of Professional Responsibility 4.1 that deals with Truthfulness in Statements to Others.
Description
Attorneys, usually litigators, are more frequently being sued for things like defamation, bad faith, intentional interference with contractual or beneficial relations, intentional infliction of emotional distress, fraud, etc., for the way they manage, leverage, and disclose embarrassing secrets, arguably illegal activity, or bad acts of the opposing party or even their lawyers.
Whether these types of activities are absolutely privileged and only entitled to partial immunity depends on when and where the statements are made and how state courts define "litigation."
Regardless of civil liability, such conduct can lead to ethics complaints. Model Ruel 4.1 attempts to set some boundaries, but it offers no bright line rule. Grippa v. Rubin, 133 F.4th 1186 (2025), Bouazza v. Geico Gen. Ins. Co., Case No. AC 46494 (Conn. Jan. 21, 2025), Landry’s Inc., et al. v. Animal Legal Defense Fund (Tex., No. 19-0036, June 15, 2021), and Dorfman v. Smith, 342 Conn 582 (2022), offer insights and some illustrations of the risks lawyers face if they utilize these tactics.
Listen as our experienced panel of litigators assists counsel in understanding the judicial proceedings privilege and attorney immunity and the limits of MR 4.1.
Presented By
Mr. Simeone is co-chair of the Issues and Appeals group at HWG LLP, and also works extensively with both the Communications and Legal Ethics and Malpractice groups. He has argued cases on a wide variety of issues before the United States Supreme Court, the D.C. Circuit, and other federal courts of appeals. Mr. Simeone has also argued before state courts of last resort, the U.S. Court of Claims, and the District of Columbia Board on Professional Responsibility.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.
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Date + Time
- event
Tuesday, March 24, 2026
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Introduction and overview of recent cases; Model Rule 4.1
II. Origins and history of the litigation privilege
A. Nexus between communication and proceedings
B. Qualified vs. absolute privileges
C. Exceptions, malice, and cross-jurisdictional issues
III. Applying privilege outside of litigation
A. Pre-suit
B. Post-suit
C. Non-litigation situations
IV. Bar complaints and malpractice
The panel will discuss these and other key issues:
- Does Model Rule 4.1 apply when an attorney is a party to litigation?
- To what degree are intentionality and good faith factors when considering questions of litigation privilege or attorney immunity?
- Do the privilege and immunity apply to transactions or only to judicial proceedings?
- What law applies?
