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socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39178
Experience:  Retired (mostly)
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Is there a statute for slander per se under Florida law, or

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Is there a statute for slander per se under Florida law, or defamation, that can be applied to a defendant who makes the allegation (slander) of someone through his attorney, who's representing him against the party he makes the allegation of? Specifically, would an attorney's actions in a Court proceeding, where the attorney made allegations of the first party that his client knew to be false, be grounds for that client (second party) to be guilty of defamation if harm came as a direct result of those "unsubstantiated" allegations?

An attorney who makes defamatory statements as part of a judicial proceeding, whether written or oral, is absolutely immune from legal action, regardless of the alleged damage caused to the subject of those statements. LEVIN, MIDDLEBROOKS v. U.S. FIRE INS. CO., 639 So.2d 606, 608 (1994).

I realize that this answer is the exact opposite of what you are seeking -- however, the law is absolute on this issue, so the best I can offer is to prevent you from wasting time in search of a means of holding the attorney or the client liable.

Please let me know if I can be of further assistance.
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Customer: replied 4 years ago.

No, I was aware of this legal shortcoming. The attorney represents his client, at the behest of his client, and if the client makes an erroneous allegation that is "imputing to another a criminal offense amounting to a felony" and the attorney repeats that as part of his representation, I would think the client is liable, not the attorney. After all the attorney is the client's fiduciary proxy. Therefore, whatever the attorney did, the client can be held liable, especially if it was he from which the attorney got the erroneous information. Am I missing something, or is this correct?

A party or attorney who brings a civil claim that is not supported by probable cause (at least a 50% chance of success on the merits) commits the tort of malicious prosecution/wrongful institution of civil proceedings.

If that's what you are arguing has occurred, it's different from defamation. Defamation requires only a false statement of fact. A civil action may have many statements which are ultimately proven false -- but when the statements are alleged, the attorney has a duty to conduct a good faith investigation sufficient to demonstrate that the case is "colorable" (meritorious) -- and not utter rubbish. If the attorney does so, then the client and the attorney are immune, because they have met the requirements necessary to avoid a malicious prosecution charge.

BotXXXXX XXXXXne, if you believe that the other party has pleaded a claim against you that is absolutely without merit, and a reasonable investigation by opposing counsel would demonstrate this, then you may have a malicious prosecution claim against the other party.

Of course there are other elements to malicious prosecution: (1) a criminal or civil judicial proceeding has been commenced against a defendant;  (2) the proceeding was instigated by plaintiff;  (3) the proceeding ended in favor of defendant;  (4) the proceeding was instigated with malice;  (5) without probable cause;  and (6) resulted in damage to defendant." Kalt v. Dollar Rent-A-Car, 422 So.2d 1031 (1982).

If you can prove all of the above, then you have a case. Otherwise, I believe you cannot prevail.

Hope this helps.
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Customer: replied 4 years ago.

It is often very difficult for questions and answers to find continuity because they are often asked in a vague way that can lead someone more educated in the field to presume their intent is something else. Such is this case, and there's nothing either of us could do about it.

There is no law suit. The Defamation was inflicted by an attorney from erroneous information by his client, whom his client knew was false, and it was inflicted in a court hearing for which the client had no interest, except the outcome of the hearing, as he would then profit from the property loss of the first person he defamed. As the proxy agent of the defaming party, the attorney only served to voice the allegation in a forum where the harm would occur. Therefore, the client who made the allegation is liable for damages of defamation, as all other elements required are there, including his "imputing to another a criminal offense amounting to a felony." To which, was totally erroneous, false and unsubstantiated; and he knew it was so, even if his attorney did not.

If the defamatory statements occurred outside of any judicial or law enforcement action, then the author, and anyone who republishes the author's defamatory statements, is liable for defamation -- with one exception: A defamatory statement made on an internet website cannot be imputed to a republisher, even if the same statement would be actionable were it published in any other medium. See 47 U.S.C. 230(c).

I admit to being a bit confused by all of this at the moment. If I'm still not reaching your issue, then perhaps if you could rephrase it, then I will try to answer again.

Hope this helps.

Customer: replied 4 years ago.

Sorry for delay, and thanks for your response; including the website point which is good to remember, but not relevant on my issue.

Your point on "outside of any judicial or law enforcement action" needs to be clarified; because the defamation occurred by a third party in possession of property owned by a Debtor in Possession (Ch-11).

The third party made allegations through their counsel, hired on a contractural matter, who then repeated them in a letter to the attorney for the Ch-11 entity, and later repeated them again in an open court hearing for the Ch-11 entity, through outbursts during the hearing, without giving testimony, without being a party-in-interest, and with no other reason for being at the hearing other than to see the Ch-11 entity convert to Ch-7, whereby their third party client who made the allegations would now benefit from the loss of the Ch-11 property sold at liquidation, which they bought. The allegations were personal against the president of the company, and were of a felonious nature. They were unfounded. So this liable occurred in a court room and in an attorney letter repeating their client's allegations, but were not "testimony" or the product of discovery. So does this comport with being outside your answer, or within it?