It is generally understood that lawyers have some form of immunity from civil liability to non-clients for their statements or actions taken in connection with representing a client in litigation. Often referred to as “the litigation privilege,” whether that immunity from third-party suit is “absolute” or “qualified” depends on the facts and circumstances of the case, the relevance or connection of the lawyer’s conduct to the litigation at hand, and the breadth of the immunity doctrine applied in a particular state. See M. L. Steinberg & L. J. Weissler, “The Litigation Privilege as a Shelter for Miscreant Counsel,” 97 Ore. L. Rev. 1 (2018); L. L. Hill, The Litigation Privilege: Its Place in Contemporary Jurisprudence,” 44 Hofstra L. Rev. 401 (2015); T. L. Anenson, “Absolute Immunity From Civil Liability: Lessons for Litigation Lawyers,” 31 Pepperdine L. Rev. 915 (2004).

Policy considerations undergird the evolution of an effective immunity doctrine. Advocates litigating on behalf of their clients should be able to represent their clients zealously without the threat of lawsuits by disgruntled non-clients or offended third parties. The goal of finding the truth in the battle between the parties requires the candid, objective and undistorted disclosure of evidence, the ability to pursue zealous advocacy, and the adversaries’ realistic evaluation of the case to promote settlement.

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