litigation privilege in Hawaii

2024In Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai#i 251, 151 P.3d 732 (2007), the Hawaii Supreme Court held that a litigation privilege applied to bar claims of intentional interference with contractual relations and intentional interference with prospective economic advantage against attorneys who had represented parties adverse to the plaintiff in prior arbitration-related proceedings.

2024Va. 2005), which held that "the litigation privilege is generally applicable to bar a civil litigant's claim for civil damages against an opposing party's attorney if the alleged act of the attorney occurs in the course of the attorney's representation of an opposing party and is conduct related to the civil action." Kahala Royal, 113 Hawai#i at 269, 151 P.3d at 750 (quoting Clark, 624 S.E.2d at 871 ); see Isobe v. Sakatani, 127 Hawai#i 368, 384- 85, 279 P.3d 33, 49-50 (App. 2012) (construing Kahala Royal); see also Domingo v. James B.

2023See Hungate, 139 Hawai#i at 413, 391 P.3d at 20 ; Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai#i 149, 155-61, 73 P.3d 687, 693-99 (2003) (explaining the policy rationale underlying the litigation privilege);23 Isobe v. Sakatani, 127 Hawai#i 368, 279 P.3d 33 (App. 2012) (applying the attorney's absolute privilege for defamation in judicial proceeding to slander of title claims, 23 In Matsuura, the supreme court explained: [T]he interrelated policies associated with the litigation privilege include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing

2023Therefore, in order to determine whether the litigation privilege should bar a subsequent collateral proceeding for civil damages based on litigation misconduct, including fraud, we must first address the policies associated with the privilege. 102 Hawai#i at 155, 73 P.3d at 693 .

2024Va. 2005), which held that "the litigation privilege is generally applicable to bar a civil litigant's claim for civil damages against an opposing party's attorney if the alleged act of the attorney occurs in the course of the attorney's representation of an opposing party and is conduct related to the civil action." Kahala Royal, 113 Hawai#i at 269, 151 P.3d at 750 (quoting Clark, 624 S.E.2d at 871 ); see Isobe v. Sakatani, 127 Hawai#i 368, 384- 85, 279 P.3d 33, 49-50 (App. 2012) (construing Kahala Royal); see also Domingo v. James B.

2012After quoting a part of Clark that explained that the litigation privilege did not bar liability of an attorney in all circumstances, the Hawai'i Supreme Court noted this court’s statement that “an attorney may be liable for malicious prosecution if he acts for an improper purpose” and that “an attorney may also be sued and held personally liable if he maliciously participates in [an] abuse of process [.] ” 113 Hawai'i at 269 , 151 P.3d at 750 (emphasis added) (quoting Myers v. Cohen, 5 Haw.App. 232, 236, 243 , 687 P.2d 6, 11, 14-15 (1984), overruled on other grounds by Myers, 67 Haw. 389 , 68

2008The litigation privilege does not, however, apply to claims for malicious prosecution, because the policies favoring the privilege are "`outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.'" Silberg, 266 Cal.Rptr. 638 , 786 P.2d at 371 (quoting Albertson v. Raboff, 46 Cal.2d 375 , 295 P.2d 405, 410 (1956)); accord Loigman v. Twp.

2008The litigation privilege does not, however, apply to claims for malicious prosecution, because the policies favoring the privilege are "`outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.'" Silberg, 266 Cal.Rptr. 638 , 786 P.2d at 371 (quoting Albertson v. Raboff, 46 Cal.2d 375 , 295 P.2d 405, 410 (1956)); accord Loigman v. Twp.

2026Nutter & Co., that “an attorney is not immune from liability or civil damages based upon the attorney’s own fraud upon the court in prior litigation proceedings.” 153 Hawaiʻi 584, 609, 543 P.3d 1, 26 (App. 2023) (holding that the litigation privilege is not an absolute bar against an action by a borrower against a foreclosing lender’s attorney arising out of the attorney’s fraud on the court in a prior foreclosure action).

2026Nutter & Co., that “an attorney is not immune from liability or civil damages based upon the attorney’s own fraud upon the court in prior litigation proceedings.” 153 Hawaiʻi 584, 609, 543 P.3d 1, 26 (App. 2023) (holding that the litigation privilege is not an absolute bar against an action by a borrower against a foreclosing lender’s attorney arising out of the attorney’s fraud on the court in a prior foreclosure action).

2026Rosen, 139 Hawai‘i 394, 391 P.3d 1 (2017), and otherwise failed to plead the necessary elements of fraud, UDAP, and related claims.

2023See Hungate, 139 Hawai#i at 413, 391 P.3d at 20 ; Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai#i 149, 155-61, 73 P.3d 687, 693-99 (2003) (explaining the policy rationale underlying the litigation privilege);23 Isobe v. Sakatani, 127 Hawai#i 368, 279 P.3d 33 (App. 2012) (applying the attorney's absolute privilege for defamation in judicial proceeding to slander of title claims, 23 In Matsuura, the supreme court explained: [T]he interrelated policies associated with the litigation privilege include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing

2024Va. 2005), which held that "the litigation privilege is generally applicable to bar a civil litigant's claim for civil damages against an opposing party's attorney if the alleged act of the attorney occurs in the course of the attorney's representation of an opposing party and is conduct related to the civil action." Kahala Royal, 113 Hawai#i at 269, 151 P.3d at 750 (quoting Clark, 624 S.E.2d at 871 ); see Isobe v. Sakatani, 127 Hawai#i 368, 384- 85, 279 P.3d 33, 49-50 (App. 2012) (construing Kahala Royal); see also Domingo v. James B.

2023See Hungate, 139 Hawai#i at 413, 391 P.3d at 20 ; Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai#i 149, 155-61, 73 P.3d 687, 693-99 (2003) (explaining the policy rationale underlying the litigation privilege);23 Isobe v. Sakatani, 127 Hawai#i 368, 279 P.3d 33 (App. 2012) (applying the attorney's absolute privilege for defamation in judicial proceeding to slander of title claims, 23 In Matsuura, the supreme court explained: [T]he interrelated policies associated with the litigation privilege include: (1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing

2008This claim is designed to "maintain[] the integrity of the judicial system, provid[e] injured persons with some form of redress, and preserv[e] an individual's right to petition the court and to a jury trial." Chung v. McCabe Hamilton & Renny Co., Ltd., 109 Hawai`i 520, 532, 128 P.3d 833, 845 (2006). [6] The litigation privilege states, "an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he part

2008App. 45, 48-49 , 678 P.2d 11, 14 (1984) (quoting Restatement (Second) of Torts § ("Restatement §") 586 (1977)).

2017See Sierra Club, 120 Hawai'i at 228-29 , 202 P.3d at 1273-74 (holding that a statutory waiver of the State’s sovereign immunity as to the underlying claim also waives the State’s sovereign immunity as to attorneys' fees resulting from the litigation of that claim). 17 .

2017See Sierra Club, 120 Hawai'i at 228-29 , 202 P.3d at 1273-74 (holding that a statutory waiver of the State’s sovereign immunity as to the underlying claim also waives the State’s sovereign immunity as to attorneys' fees resulting from the litigation of that claim). 17 .

2012See Mozzochi v. Beck, 204 Conn. 490 , 529 A.2d 171 (1987); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn.Ct.App.1980); see also 1 Am.Jur.2d Abuse of Process § 21 (2005) (“The absolute privilege that protects attorneys from liability for defamation occurring in the course of a judicial proceeding does not provide an attorney with an absolute defense to liability for abuse of process.”).

2012See Mozzochi v. Beck, 204 Conn. 490 , 529 A.2d 171 (1987); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn.Ct.App.1980); see also 1 Am.Jur.2d Abuse of Process § 21 (2005) (“The absolute privilege that protects attorneys from liability for defamation occurring in the course of a judicial proceeding does not provide an attorney with an absolute defense to liability for abuse of process.”).

2012See Mozzochi v. Beck, 204 Conn. 490 , 529 A.2d 171 (1987); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn.Ct.App.1980); see also 1 Am.Jur.2d Abuse of Process § 21 (2005) (“The absolute privilege that protects attorneys from liability for defamation occurring in the course of a judicial proceeding does not provide an attorney with an absolute defense to liability for abuse of process.”).

2012After quoting a part of Clark that explained that the litigation privilege did not bar liability of an attorney in all circumstances, the Hawai'i Supreme Court noted this court’s statement that “an attorney may be liable for malicious prosecution if he acts for an improper purpose” and that “an attorney may also be sued and held personally liable if he maliciously participates in [an] abuse of process [.] ” 113 Hawai'i at 269 , 151 P.3d at 750 (emphasis added) (quoting Myers v. Cohen, 5 Haw.App. 232, 236, 243 , 687 P.2d 6, 11, 14-15 (1984), overruled on other grounds by Myers, 67 Haw. 389 , 68

2012After quoting a part of Clark that explained that the litigation privilege did not bar liability of an attorney in all circumstances, the Hawai'i Supreme Court noted this court’s statement that “an attorney may be liable for malicious prosecution if he acts for an improper purpose” and that “an attorney may also be sued and held personally liable if he maliciously participates in [an] abuse of process [.] ” 113 Hawai'i at 269 , 151 P.3d at 750 (emphasis added) (quoting Myers v. Cohen, 5 Haw.App. 232, 236, 243 , 687 P.2d 6, 11, 14-15 (1984), overruled on other grounds by Myers, 67 Haw. 389 , 68

2008The litigation privilege does not, however, apply to claims for malicious prosecution, because the policies favoring the privilege are "`outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.'" Silberg, 266 Cal.Rptr. 638 , 786 P.2d at 371 (quoting Albertson v. Raboff, 46 Cal.2d 375 , 295 P.2d 405, 410 (1956)); accord Loigman v. Twp.

2008The litigation privilege does not, however, apply to claims for malicious prosecution, because the policies favoring the privilege are "`outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.'" Silberg, 266 Cal.Rptr. 638 , 786 P.2d at 371 (quoting Albertson v. Raboff, 46 Cal.2d 375 , 295 P.2d 405, 410 (1956)); accord Loigman v. Twp.

2008Kamaka also relies on Goldstein v. Serio, 496 So.2d 412, 415 (La.Ct.App.1986), for the proposition that absolute privilege is not an affirmative defense to a malicious prosecution action.

2008Comm., 185 N.J. 566 , 889 A.2d 426 , 436 n. 4 (2006); Clark v. Druckman, 218 W.Va. 427 , 624 S.E.2d 864, 871 (2006); cf. Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai`i 251, 268-69, 151 P.3d 732, 749-50 (2007) (quoting Clark, 624 S.E.2d at 870 (quoting Baglini v. Lauletta, 338 N.J.Super. 282 , 768 A.2d 825, 833-34 (App.Div.2001))).

2008Comm., 185 N.J. 566 , 889 A.2d 426 , 436 n. 4 (2006); Clark v. Druckman, 218 W.Va. 427 , 624 S.E.2d 864, 871 (2006); cf. Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai`i 251, 268-69, 151 P.3d 732, 749-50 (2007) (quoting Clark, 624 S.E.2d at 870 (quoting Baglini v. Lauletta, 338 N.J.Super. 282 , 768 A.2d 825, 833-34 (App.Div.2001))).

2008This claim is designed to "maintain[] the integrity of the judicial system, provid[e] injured persons with some form of redress, and preserv[e] an individual's right to petition the court and to a jury trial." Chung v. McCabe Hamilton & Renny Co., Ltd., 109 Hawai`i 520, 532, 128 P.3d 833, 845 (2006). [6] The litigation privilege states, "an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he part

2008Goodsill counters that, pursuant to the plain language of RSCH Rule 2.8, complaints to the ODC are absolutely privileged and “no lawsuit of any kind, including a claim for malicious prosecution, may be predicated thereon.” In support of her position, Kamaka points to two cases from other jurisdictions where suits for malicious prosecution have been excepted from “the litigation privilege” 16 : (1) Ramstead v. Morgan, 219 Or. 383 , 347 P.2d 594, 601 (1959) (holding malicious prosecution actions permissible because the “policy of encouraging free access to the courts ... is outweighed by the pol

2008Goodsill counters that, pursuant to the plain language of RSCH Rule 2.8, complaints to the ODC are absolutely privileged and “no lawsuit of any kind, including a claim for malicious prosecution, may be predicated thereon.” In support of her position, Kamaka points to two cases from other jurisdictions where suits for malicious prosecution have been excepted from “the litigation privilege” 16 : (1) Ramstead v. Morgan, 219 Or. 383 , 347 P.2d 594, 601 (1959) (holding malicious prosecution actions permissible because the “policy of encouraging free access to the courts ... is outweighed by the pol

2007In Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver N.A., 892 P.2d 230, 235 (Colo.1995), the.

2007This court has previously recognized that arbitration is “a quasi-judicial proceedingf.]” Coral Kingdom of Kaneohe, Ltd. v. Harter, 65 Haw. 247, 249 , 649 P.2d 1159, 1161 (1982).

2007This court has previously recognized that arbitration is “a quasi-judicial proceedingf.]” Coral Kingdom of Kaneohe, Ltd. v. Harter, 65 Haw. 247, 249 , 649 P.2d 1159, 1161 (1982).

2005Cir.2003) (unpublished; on appeal from an unsuccessful involuntary servitude challenge to a child support order, affirming the district court’s entry of a litigation bar preventing appellant from filing any further frivolous filings); Freeman, 397 A.2d at 557 (involuntary servitude challenge to child support order so lacking in merit as to be addressed in a conclusory fashion in a footnote).

2003We have described courts as "forums for the discovery of truth," State v. Haanio, 94 Hawai`i 405, 415, 16 P.3d 246, 256 (2001) (quoting People v. Barton, 12 Cal.4th 186 , 47 Cal.Rptr.2d 569 , 906 P.2d 531, 536 (1995)), and have stated that courts perform "two essential tasks: sifting through conflicting versions of the facts to discover where truth lies, and applying the correct legal principles to the facts as found." Office of Disciplinary Counsel v. Breiner, 89 Hawai`i 167, 173, 969 P.2d 1285, 1291 (1999) (quoting In re Vincenti, 92 N.J. 591 , 458 A.2d 1268, 1275 (1983)).

2003We have described courts as "forums for the discovery of truth," State v. Haanio, 94 Hawai`i 405, 415, 16 P.3d 246, 256 (2001) (quoting People v. Barton, 12 Cal.4th 186 , 47 Cal.Rptr.2d 569 , 906 P.2d 531, 536 (1995)), and have stated that courts perform "two essential tasks: sifting through conflicting versions of the facts to discover where truth lies, and applying the correct legal principles to the facts as found." Office of Disciplinary Counsel v. Breiner, 89 Hawai`i 167, 173, 969 P.2d 1285, 1291 (1999) (quoting In re Vincenti, 92 N.J. 591 , 458 A.2d 1268, 1275 (1983)).

2003Co., 639 So.2d 606, 608 (Fla.1994) [hereinafter, Levin ]; Murphy, 841 S.W.2d at 674 .

2003"Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct." Levin, 639 So.2d at 608 .

2003Therefore, in order to determine whether the litigation privilege should bar a subsequent collateral proceeding for civil damages based on litigation misconduct, including fraud, we must first address the policies associated with the privilege. a. promoting the candid, objective, and undistorted disclosure of evidence The United States Supreme Court (U.S. Supreme Court) has noted that underlying the litigation privilege is "public policy which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Briscoe v. LaHue, 460 U.S. 325, 3

2003Therefore, in order to determine whether the litigation privilege should bar a subsequent collateral proceeding for civil damages based on litigation misconduct, including fraud, we must first address the policies associated with the privilege. a. promoting the candid, objective, and undistorted disclosure of evidence The United States Supreme Court (U.S. Supreme Court) has noted that underlying the litigation privilege is "public policy which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." Briscoe v. LaHue, 460 U.S. 325, 3