THE LITIGATION PRIVILEGE AND Workers' Compensation

Benjamin Franklin was well known for his wit and witticism. Of lawyers, he made the following observation:

God works wonders now and then;

. . . . . Behold a lawyer, an honest man.

In other words, even in the 1700’s people recognized that lawyers were not inherently honest. Today, it is easy to imagine Mr. Franklin telling the following joke:

How do you know when a lawyer is lying?

. . . . . His lips are moving.

It is easy to ascribe these witticisms to misperceptions about the role of lawyers in the legal system. However, it is an unfortunate truth that “[o]nly 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll.” Footnote 1. In 2022, lawyer honesty ratings remained similarly low, with only 19% of people surveyed by Gallup believing lawyers to be honest and only 22% of people surveyed by Ipsos believing lawyers to be trustworthy.

Contrary to the heavy weight of this public opinion, lawyers view themselves as honest and trustworthy, being constrained by applicable rules that guide them to act honestly and to be worthy of trust. For instance, the American Bar Association expects attorney to be honest, observing that “[e]veryone knows that lawyers are not allowed to lie – to clients, courts or third parties.” Footnote 2.

The Connecticut Workers’ Compensation Commission expects attorneys to be honest and truthful when making arguments on behalf of their clients. As the Compensation Review Board of the Connecticut Workers’ Compensation Commission has explained,

“[o]ur precedent makes clear we expect both parties at a hearing to conduct themselves in a responsible and professional manner. See for example Mankus v. Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), cert. denied, 288 Conn. 904 (2008), ‘we do not condone the use of misrepresentation or artifice by either claimants or respondents before this Commission.’ (Emphasis added.)”

Falkowski v. W.E. Bassett Company, 2012 Conn. Wrk. Comp. LEXIS 51, *5-6 (December 3, 2012). In another matter, the Connecticut Workers’ Compensation Commission recognized the destructive impact of dishonest and untruthful conduct (while also recognizing that it was unable to provide a viable remedy for such conduct). It explained that “‘. . . the respondent’s actions in this claim . . . demonstrate an alarming lack of candor that is most likely actionable in another forum, the Workers’ Compensation Commission unfortunately lacks the jurisdiction necessary in order to hold the respondents accountable for their troubling actions.’ See Conclusion, P D.” Murray v. Town of Stratford, et al., 2013 Conn. Wrk. Comp. LEXIS 53, *4, 2013 Conn. Wrk. Comp. LEXIS 53 (December 11, 2013).

Given this divergence between public opinion of lawyers and the way in lawyers view themselves, it is reasonable to ask why lawyer expectation does not meet reality.

It is likely that this divergence is explained by lawyers who claim to be privileged to misrepresent and deceive in the name of winning. This privilege – called the litigation privilege – is to a certain degree condoned by Connecticut courts. As the Connecticut Supreme Court has explained,

“Connecticut has long recognized the litigation privilege. In Blakeslee & Sons v. Carroll, 64 Conn. 223, 29 A. 473 (1894) (Blakeslee), an action in slander for allegedly false and malicious testimony by a witness, the court explained: ‘The general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander . . . .’ Id., 232. Relying on English authorities, including Munster, Dawkins, and Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195 (1859) (considering absolute immunity with respect to statement in affidavit by witness), the court added that the privilege ‘extends to judges, counsel and witnesses’ participating in judicial proceedings.Blakeslee & Sons v. Carroll, supra, 232.”

Simms v. Seaman, 308 Conn. 523, 536-537 (2013). Despite this general rule, however, there are limitations that are seemingly intended to preserve the integrity of the judicial system. As the Connecticut Supreme Court explained – in a case involving the Connecticut Workers’ Compensation Act – the litigation privilege is not intended to protect conduct that is equivalent to a misuse, or abuse, of the judicial system.

“We have, however, recognized a distinction between attempting to impose liability upon a participant in a judicial proceeding for the words used therein and attempting to impose liability upon a litigant for his improper use of the judicial system itself. See DeLaurentis v. New Haven, supra, 220 Conn. 263-64 (‘whether or not a party is liable for vexatious suit in bringing an unfounded and malicious action, he is not liable for the words used in the pleadings and documents used to prosecute the suit’ [emphasis added; internal quotation marks omitted]). In this regard, we have refused to apply absolute immunity to causes of action alleging the improper use of the judicial system.”

MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629 (2013). The MacDermid Court, discussing a claim pursuant to C.G.S. § 31-290a that is intended to punish discriminatory and retaliatory conduct targeting injured workers, continued by explaining that:

“we agree with the trial court’s conclusion that, for balancing purposes, ‘the allegations in the counterclaim are more akin to an abuse of process claim [than] a defamation or tortious interference claim.’ The torts of vexatious litigation and abuse of process both prohibit conduct that subverts the underlying purpose of the judicial process. Specifically, these causes of action prevent, or hold an individual liable for, the improper use of the judicial process for an illegitimate purpose, namely, to inflict injury upon another individual in the form of unfounded actions. See DeLaurentis v. New Haven, supra, 220 Conn. 264. Section 31-290a mirrors the purpose of these torts by preventing, or holding employers liable for, discrimination against an employee who exercises his rights under the act. See footnote 1 of this opinion. In the context of employer initiated litigation, like that involved in the present case, § 31-290a is designed to prevent, or hold the employer liable for, the improper use of the judicial process for the illegitimate purpose of retaliating against an employee for his exercise of his rights under the act. The illegitimate use of litigation in such a retaliatory manner subverts the purpose of the judicial system and, as a matter of public policy, we will not encourage such conduct by affording it the protection of absolute immunity. See Simms v. Seaman, supra, 308 Conn. 545-46 (whether claim subverts underlying purpose of judicial proceeding is relevant to determination of whether absolute immunity should apply); see also Rioux v. Barry, supra, 283 Conn. 350 (absolute immunity does not bar claims of vexatious litigation); Mozzochi v. Beck, supra, 204 Conn. 495 (absolute immunity does not bar claims of abuse of process).

MacDermid, Inc. v. Leonetti, 310 Conn. 616, 631-632 (2013).

There is another statute which expressly prohibits deceptive conduct by both employers and employees (as well as the agents of both employers and employees). This statute, C.G.S. § 31-290c, applies under the following circumstances:

“Our Supreme Court has explained that § 31-290c ‘criminalizes the behavior of a person who makes a claim or obtains an award based in whole or part on a material misrepresentation or intentional nondisclosure of material fact, and it also confers the right to bring a cause of action for statutory theft pursuant to General Statutes § 52-564.’ Leonetti v. MacDermid, Inc., supra, 310 Conn. 217-18; see also Dowling v. Slotnik, 244 Conn. 781, 815, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). Likewise, it applies to an employer that prevents or attempts to prevent the receipt of benefits or reduces or attempts to reduce the amount of benefits based on a material misrepresentation or intentional nondisclosure of a material fact. See, e.g., Desmond v. Yale-New Haven Hospital, Inc., 138 Conn. App. 93, 100, 50 A.3d 910 (plaintiff claimed that defendants prevented, or attempted to prevent, receipt of benefits or reduced or attempted to reduce amount of benefits by casting workers’ compensation claims in false light by making certain misrepresentations), cert. denied, 307 Conn. 942, 58 A.3d 258 (2012).”

Reid v. Speer, 209 Conn. App. 540, 549 (2021).

Yale-New Haven Hospital, Inc. recently, however, rejected this proposition, asserting that both: (a) the making of material misrepresentations and (b) the intentional withholding of material facts is protected by the litigation privilege. More specifically, Yale-New Haven Hospital, Inc. claimed that it is privileged to make false and malicious statements so long as it is attempting to reduce or terminate an employee's workers’ compensation benefits because such conduct is “related” to the workers’ compensation claim.

As Letizia, Ambrose and Falls, P.C. argued, on behalf of Yale-New Haven Hospital, Inc.,

“[t]he litigation privilege provides absolute immunity from civil liability for statements or conduct in the course of judicial proceedings as long as [those statements] are in some way pertinent to the subject of the controversy. Simms v. Seaman, 308 Conn. 523, 534 (2013). Absolute litigation immunity applies to judicial and quasi-judicial proceedings, including administrative proceedings. Id. 539 . . . Moreover, the doctrine of absolute immunity applies to litigation conduct even if undertaken for improper motives and to statements even if made falsely, deliberately and maliciously. Id. 536-37 (absolute privilege applied to attorney who allegedly deliberately concealed material evidence from the plaintiff and incorrectly portrayed the plaintiff's former spouse as economically disadvantaged) . . .”

Desmond v. Yale-New Haven Hospital, Inc., et al., Docket No. X06-UWY-CV24-6075921-S (Entry No. 113.00, pg. 26). In other words, the argument of Yale-New Haven Hospital, Inc. is that an employer is protected from – and may properly benefit from – false statements and deceptive conduct that is undertaken for an improper motive or is even determined to be deliberate and malicious.

Despite this argument, not every Court is willing to tolerate false statements and deceptive conduct. See Footnote 3. And, as noted above, the Workers' Compensation Commission claims that it does not tolerate such conduct from either respondents (employers and employer agents) or claimants (injured workers and their agents). Separately, the legislature has indicated its unwillingness to tolerate this behavior, having enacted C.G.S. Section 31-290c of the Workers' Compensation Act to provide criminal and civil actions as appropriate. See Reid v. Speer, 209 Conn. App. 540, 549 (2021).

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Footnote 1: When Lawyers Move Their Lips: Attorney Truthfulness in Mediation and a Modest Proposal, Journal of Dispute Resolution Volume 2007, Issue 1 Article 6 (2007) (https://scholarship.law.missouri.edu/jdr/vol2007/iss1/6).

Footnote 2: “When is it okay for a lawyer to lie?”, American Bar Association (December 2018) (https://www.americanbar.org/news/abanews/publications/youraba/2018/december-2018/when-is-it-okay-for-a-lawyer-to-lie--/).

Footnote 3: “‘False testimony in a formal proceeding is intolerable. We must neither reward nor condone such a flagrant affront to the truth-seeking function of adversary proceedings.’ (Internal quotation marks omitted.) ABF Freight System, Inc. v. N.L.R.B., 510 U.S. 317, 323, 114 S.Ct. 835, 127 L.Ed. 2d 152 (1994). As this Court clearly set forth at the start of and at the end of the sanctions hearing, it will not condone nor tolerate willful false testimony designed to perpetrate some fraud on this Court.” Yoranidis v. Exxon Mobil Corp., 2024 Conn. Super. LEXIS 809, *3 (April 26, 2024).