Corporate Counsel Update
June 2001
Defamation claims against lawyers:
Be careful or beware
It is of the nature of the legal profession that lawyers are consulted mainly to defend the rights
and views of their clients in business transactions and in actual or potential lawsuits. Whether they
work in private practice or in a corporate legal department, lawyers carrying out their daily
responsibilities (including opinions, corporate press releases, letters or legal proceedings, and so
forth) may act to the detriment of the rights of third parties and, hence, commit a fault. Indeed,
lawyers’ written or verbal exchanges can sometimes be strong and contain offensive comments.
Therefore, lawyers must always be cautious during such exchanges, counsel their clients accordingly,
and control their emotions.
Under the Code of ethics of advocates,1 a lawyer’s obligations include cooperation, loyalty,
and information, as well as acting objectively, moderately, and with dignity.2
The courts have afforded to lawyers some protection (referred to as relative immunity or
“qualified privilege”) in the performance of their duties in that lawyers may be held liable only if their
comments are false, irrelevant, made in bad faith, or likely to be prejudicial to the person against
whom they were directed.3 One thing is certain: lawyers can be held liable by third parties for their
wrongful acts.
The purpose of the present bulletin is to raise lawyers’ awareness to the risks associated with
defamatory actions or statements.
The Notion of Defamation
In lawsuits where the notion of defamation comes into play, there is an unquestionable
conflict between the value of reputation and the value of freedom of speech: [translation] "Whatever
is added to the concept of libel is taken from the concept of freedom of speech".4 Yet freedom of
speech has never been recognized as an unrestricted right. In fact, Quebec civil law restrains freedom
of speech by imposing sanctions on defamation and protecting every person’s reputation.5
André and Richard Nadeau have defined defamation as follows:6
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[Translation] "Defamation covers any damage done to the reputation or honour of a person,
including a corporation, as well as any imputation that exposes the person to hatred,
contempt, or even only ridicule".
For defamation to give rise to an action in damages, the person sued must be at fault. In this
regard, two types of behaviour can constitute a fault. In one situation, the person making the
statement may have seriously attacked the victim’s reputation and aimed to ridicule or humiliate the
victim, with the intent to cause harm to the victim or to expose the victim to hatred and contempt by
the public or by a group. On the other hand, the person making the statement may also have
damaged a person’s reputation and thus committed a fault triggering liability for damages to
reputation by recklessness, negligence, impertinence or carelessness without any intent to harm.7
Concluding the first part of this review, we need to dispel two popular beliefs surrounding the
notion of defamation. First, the courts do not require that the victim of defamation establish malice
on the part of the person making the statements if the statements are objectively injurious.8 In his
work La responsabilité civile, the Honourable Justice Baudouin writes "It is sufficient to refer to the
general rules of civil liability and to abandon once and for all the false idea that defamation
necessarily results from bad faith with intent to harm."9
Second, defamation does not result only from the disclosure or publication of false or
erroneous information. Indeed, liability is triggered when the facts published are accurate but the sole
purpose of their being published is to harm the victim. Some things are better left unsaid: there must
be some public interest in stating these facts, and they must not be conveyed for the sole purpose of
harming others.10
We will now examine how these notions apply to defamation cases against lawyers.
Defamatory Actions or Statements, in Legal Practice
Needless to say, in order to carry out their tasks as representatives and advisers, it is essential
that lawyers be able to act and express themselves freely for and on behalf of their clients, so that
they may defend and adequately represent their clients’ interests. However, lawyers must still abide by
certain limits set by the courts. That is, parties cannot use whatever manner they would like to give
effect to their claims.
Lawyers who put forward irrelevant facts with intent to harm, who make reckless or malicious
comments, or who do not take those precautionary measures reasonably expected from a cautious
and careful attorney expose themselves to an action in damages under the general rules of civil
liability, as mentioned above. The courts will always try to determine whether the lawyers’ statements
or allegations were made in good faith (to assist their clients in the exercise of the clients’ rights) or,
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on the contrary, were made recklessly with the intent to harm the person against whom they were
directed.11
In both legal writing and case law, the consensus is that lawyers will be held liable for their
litigious statements only if they are:
•
of such a nature to cause damage to the person against whom they are directed;
•
false;
•
irrelevant to the case; and
•
made in bad faith and, therefore, with malicious intent.12
The absence of a reasonable and probable cause to believe that the injurious statements are
true can form the basis of a presumption of, or evidence of bad faith or malice. According to Chaput
J., whose well-known dictum perfectly summarizes our comments above: What matters is that the
allegation be perfectly relevant and, in the circumstances, reasonably true.
Lawyers will escape any liability if they can prove that it was necessary to make the statements
in order to establish their client’s rights or give effect to them, and if the statement was not made for
the sole purpose of causing harm to the other party or exposing the other party to humiliation. In
other words, lawyers must at all times be able to establish that they had reasonable grounds to believe
that their comments were true and relevant. For this purpose, lawyers need not perform an extensive
investigation or verify all the information provided to them by their clients. Nevertheless, they must
be able to demonstrate that they have taken certain reasonable precautions to ensure the veracity of
the information received from the client.13
Finally, even if the lawyer is exonerated, the client may nevertheless be held liable for the
client’s personal fault, for example, for not having verified the truth of the facts conveyed to the
attorney, or for having intended to harm the other party.
Conclusion
We have attempted to define briefly the complex notion of defamation to demonstrate that an
action for damages is available to all people who believe that they have been defamed by the acts or
statements of lawyers acting in the context of their professional activities.
Lawyers must therefore remember that statements made by them will not likely be considered
as a fault if they are true (or if their author has reasonable grounds to believe they are true) and if
they are relevant or necessary to attain the desired result. These two criteria – veracity and relevance
– should always guide the practising lawyer. Moreover, as counsel, lawyers must ensure that their
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clients have verified the truth of the facts provided to lawyers, since the client is also not immune to
defamation lawsuits.
In other words, when dealing with defamation, let good faith and caution be your guide.
R.R.Q., 1981, c. B-1, r.1.
See particularly articles 2.03, 3.02.01d) and 4.02.01; See also Selig v. Coallier, [1997] R.R.A. 1052 (C.S.).
3 Pearl c. Byers, [1986] R.J.Q. 1194 (C.S.); Falardeau v. Bordeleau, [1995] R.J.Q. 1267 (C.Q.); Colas v. Roy, [1997] R.R.A.
203 (C.S.); Lecours v. Pichet, J.E. 98-243 (C.Q.).
4 Sweeney c. Patterson, 128 F.2d 457 (D.C. Cir. 1942) 458.
5 See in particular articles 35 and 1457 of the Civil Code of Québec.
6 André NADEAU and Richard NADEAU, Traité pratique de la responsabilité civile délictuelle, Montréal, Wilson &
Lafleur, 1971, p.249 (translated from the original French).
7 See particularly Rizzuto v. Rocheleau, [1996] R.R.A. 448 (C.S.).
8 Van Den Hoef v. Air Canada, [1988] R.R.A. 543 (C.S.).
9 BAUDOUIN, Jean-Louis and Patrice DESLAURIERS, La reponsabilité civile, 5th ed., Cowansville, Éditions Yvon
Blais, 1998, p. 302 (translated from the original French).
10 See in particular Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204 (C.S.).
11 BAUDOUIN, Jean-Louis and Patrice DESLAURIERS, loc. cit., note 12, p.910.
12 See especially, JOBIN-LABERGE, Odette, "La responsabilité civile des avocats pour la diffamation dans
les actes de procédure" in Développements récents en droit civil (1992), Cowansville, Éditions Yvon Blais, 1992,
p.24.
13 DESLAURIERS, Patrice, "La responsabilité des avocats", in Responsabilité, Collection de droit 1999-2000,
Volume 4, Cowansville, Éditions Yvon Blais, p. 99. See also Bélisle-Heurtel v. Tardif, [2000] R.J.Q. 2391 (C.S.) (in
appeal).
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