The North Carolina Court of Appeals today affirmed the dismissal of a defamation claim against a lawyer and his law firm, giving a broad and expansive interpretation to the absolute privilege given to statements "made in the course of a judicial proceeding."

The claim by the Plaintiff in Jones v. Coward was that a lawyer handling a civil lawsuit against him had approached a potential witness named Bracken "while he was eating breakfast in a public place," and asked him whether he had heard that Jones had "got run out of town for drugs."

Jones, presumably still in town and drug-free, sued the attorney and his law firm for defamation.  The trial court dismissed Jones’ complaint based on the established doctrine that "defamatory statements made in the course of a judicial proceeding are absolutely privileged and will not support a civil action for defamation, even if made with malice."

The question for the Court of Appeals was whether the statement, made outside of the courthouse, over bacon and eggs, was "made in the course of a judicial proceeding."  It determined that it was, holding as follows:

We hold that an attorney’s statement or question to a potential witness regarding a suit in which that attorney is involved, whether preliminary to trial, or at trial, is privileged and immune from civil action for defamation, provided the statement or question is not “so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety[,]” and it was “so related to the subject matter of the controversy that it may [have] become the subject of inquiry in the course of the trial[.]”,

The Court determined that the statement wasn’t "palpably irrelevant," and observed that the attorney had approached Bracken as a witness in order to gather evidence for the pending lawsuit, and that the question might have become the subject of inquiry at trial on Plaintiff’s credibility. 

On that last point, Defendants had argued in their brief that a drug conviction would be admissible under North Carolina Rule of Evidence 609, which provides that "[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted [of a crime] shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter."