After being convicted of tampering with records in violation of Ohio R.C. 2913.42(A)(1), which prohibits a person from falsifying any writing or record "knowing that the person has no privilege to do so," Monai Sherea Brown appealed her conviction. She claimed that the false statements she made in documents that she filed in a civil quiet-title action against an innocent homeowner in the hopes of taking his home (a ploy that Ms. Brown had used on at least two other unsuspecting homeowners, by the way) could not support her conviction because they were absolutely protected by the "litigation privilege." In State v. Brown, 2022-Ohio-4347, ¶ 2, the Ohio Supreme Court rejected that claim: "We hold that the litigation privilege, which protects a person from civil liability for defamatory statements that were made during judicial proceedings and that were reasonably related to the proceedings in which they were made, does not shield a person from criminal liability related to those statements."

In reaching this holding, the Ohio Supreme Court considered the issue "in the context of a sufficiency-of-the-evidence challenge" (¶ 16) and started with the elements needed to be proven to support a "tampering with records" conviction under R.C. 2913.42(A)(1). Under that criminal statute, the State had to prove that Ms. Brown falsified a writing or record, that Ms. Brown knew she did not have the privilege to do so, and that Ms. Brown did so with the purpose to defraud. Ms. Brown asserted that she had the privilege to lie in documents she filed in the civil quiet-title action, and even if she did not have that privilege, she did not know she could not do that. The Court rejected both arguments.

The Court first addressed Ohio's litigation privilege. As the Court explained, the "litigation privilege is a deeply rooted common-law rule that protects individuals from defamation lawsuits." (¶ 20.) "Early on, this court acknowledged there were many views on the litigation privilege, ranging from absolute privilege for all statements made during judicial proceedings, to all relevant statements made during judicial proceedings, to all not false and malicious statements made during judicial proceedings." (¶ 21, citation omitted.) In Erie Cty. Farmers' Ins. Co. v. Crecelius, 122 Ohio St. 210, 212-15, 171 N.E.97 (1930), the court said that "no action will lie" against a party for defamatory statements made in certain contexts but emphasized that the litigation privilege would not shield a person from criminal liability for perjury or from an action for malicious prosecution. Fifty years later, the Court clarified Erie Cty. Farmers' Ins. Co., when it held in Surace v. Wuliger, 25 Ohio St.3d 229, 232-33, 495 N.E.2d 939 (1986) that "[a]s a matter of public policy, under the doctrine of absolute privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in a written pleading does not state a cause of action where the allegedly defamatory statement bears some reasonable relation to the judicial proceeding in which it appears." There, the Court explained that while the litigation privilege may "afford immunity to the evil disposed and the malignant slanderer" it was necessary to protect the administration of justice by preventing "a multitude of slander and libel suits" and by encouraging "an honest suitor" to pursue his or her legal remedies. Surace, at 232.

Since Surace, the court has afforded "civil immunity [only] to individuals who have made defamatory statements during judicial proceedings that were reasonably related to those proceedings." (Brown, ¶ 23.) It has not extended the litigation privilege's reach to criminal charges. Ms. Brown cited a Wisconsin Supreme Court decision that held that the litigation privilege protects a person from being prosecuted for criminal defamation (State v. Cardenas-Hernandez, 219 Wis.2d 516, 579 N.W.2d 678 (1998)), but, as the Ohio Supreme Court found

Brown has not provided, nor can we find, any legislative history in Ohio to support her argument that the litigation privilege extends beyond protecting a person from civil liability for a defamatory statement that was made during a judicial proceeding and was reasonably related to that proceeding. Rather, over 100 years of precedent and Article I, Section 11, of the Ohio Constitution [which provides a person may be criminally prosecuted for libel unless the statement is true and published with good motives for justifiable ends] refute Brown's assertion that the common-law litigation privilege shields a person from criminal liability for libelous or perjured statements.

(Brown at ¶ 25.) Thus, "the litigation privilege that shields a person from civil liability for defamatory statements made during a judicial proceeding and were reasonably related to that proceeding does not extend to protect that person from criminal prosecution." (¶ 26.)

Given that the charge for which Ms. Brown was convicted—tampering with records—required proof that Ms. Brown knew she did not have a privilege to falsify records, the Court went on to hold that the evidence proved that she did know: "Beyond the fact that this Court had never recognized the litigation privilege as shielding a person from criminal liability for making defamatory statements, the documents that Brown filed in the quiet-title action are evidence that she in fact knew that she had no privilege to make false statements in her filings. Both the complaint to quiet title and the affidavit of indigency contained statements that Brown could be subject to criminal prosecution if she lied in those documents. She signed and filed each document knowing that fact."

Although the Court's holding in Brown is in the context of a criminal case, those attorneys who practice in the civil litigation arena should take note, particularly when drafting complaints or answers or other formal papers to be filed in court and when advising the client on the potential ramifications of statements contained in those papers. The litigation privilege can be a powerful shield, but as the Ohio Supreme Court has reaffirmed, it has only a specific, limited reach: "the litigation privilege provides absolute immunity from civil suits only for defamatory statements that were made during judicial proceedings and that were reasonably related to those proceedings." (Brown at ¶ 31.) It clearly does not apply in the context of criminal proceedings, and one can be criminally charged for libel or prosecuted for perjury or falsification.

And it also does not apply to every statement made in any type of civil case. Indeed, in Retail Service Systems, Inc. v. Organ, 2022-Ohio-4696, rendered 20 days after Brown, the court described Brown as the Ohio Supreme Court's caution against the overuse of the litigation privilege, finding it had no application in that case. Organ involved claims of legal malpractice, breach of confidence, and breach of contract arising out of the Organ law firm's disclosure of a confidential settlement figure in a fee dispute complaint that it filed. The trial court granted summary judgment in favor of the Organ firm and dismissed the complaint, finding that the disclosure of the confidential settlement amount was absolutely privileged and, therefore the Organ firm was immune from liability. The court of appeals reversed, relying on Brown and its understanding that "the purpose of the litigation privilege is to protect the administration of justice by preventing a multitude of libel and slander suits and by encouraging an honest suitor to pursue his or her legal remedies." (¶ 11.) The court in Organ found that "the trial court's analysis [was] fundamentally flawed, as it misunderst[ood] the scope of the litigation privilege. The privilege does not apply to all disclosures in all types of cases; rather, it applies to the disclosure of a limited class of statements made in connection with specific types of claims, most directly to statements alleged to be false made in connection with the prosecution of claims alleging defamation or fraud. The disclosure here [was] of a truthful but confidential statement made for the purpose of collecting an alleged debt—obviously a different matter." (¶ 10.)

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