Scholz v. Epstein, 341 Conn. 1 (2021)

Citation: Scholz v. Epstein, 341 Conn. 1 (2021)
Parent Document: Scholz v. Epstein, 341 Conn. 1 (2021)
Jurisdiction: Connecticut (state)
Effective Date: 2021-09-29
Original Source: https://www.courtlistener.com/opinion/6244827/scholz-v-epstein/ ↗

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On appeal to this court, we detailed the history of
the litigation privilege, explaining that ‘‘[t]hree ratio-
nales have been articulated in support of the absolute
privilege.’’ Id., 535. The most important is that the privi-
lege ‘‘protects the rights of clients who should not be
imperiled by subjecting their legal advisors to the con-
stant fear of lawsuits arising out of their conduct in
the course of legal representation.’’ (Internal quotation
marks omitted.) Id. ‘‘The purpose of affording absolute
immunity to those who provide information in connec-
tion with judicial and quasi-judicial proceedings is that
in certain situations the public interest in having people
speak freely outweighs the risk that individuals will
occasionally abuse the privilege by making false and
malicious statements.’’ (Internal quotation marks omit-
ted.) Id., 539. Additionally, the privilege protects access
to the courts inasmuch as ‘‘retaliatory lawsuits [that
might] cause the removal of [an] adversary’s counsel’’
would compromise the judicial process, and there exist
other remedies, such as the court’s contempt powers
and other disciplinary proceedings, to deter attorney
misconduct. Id., 535–36.
We explained in Simms, however, that there are lim-
its to the application of the litigation privilege to attor-
ney conduct and communications. Id., 540. Specifically,
attorneys are not protected by absolute immunity
against claims for abuse of process, vexatious litigation,
or malicious prosecution. Id., 540–42. This is because
‘‘whether and what form of immunity applies in any
given case is a matter of policy that requires a balancing
of interests . . . .’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Id., 541–42.
Relevant to any determination of whether policy con-
siderations support applying absolute immunity to any
particular cause of action, this court in Simms identi-
fied the following factors: (1) whether the alleged con-
duct subverts the underlying purpose of a judicial
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