Hecht v. Levin - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
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Hecht, Appellee, v. Levin, Appellant.
[Cite as Hecht v. Levin (1993), Ohio St. 3d .]
Torts -- Defamation -- Attorneys at law -- Complaint filed
with grievance committee of local bar association is part
of a judicial proceeding -- Statement made in course of
attorney disciplinary proceeding enjoys an absolute
privilege against a civil action based thereon, when --
R.C. 2305.28 does not apply to attorney disciplinary
proceedings.
1. A complaint filed with the grievance committee of a local
bar association is part of a judicial proceeding.
2. A statement made in the course of an attorney disciplinary
proceeding enjoys an absolute privilege against a civil
action based thereon as long as the statement bears some
reasonable relation to the proceeding. (Surace v. Wuliger
[1986], 25 Ohio St. 3d 229, 25 OBR 288, 495 N.E.2d 939,
approved and followed.)
3. R.C. 2305.28 does not apply to attorney disciplinary
proceedings held under the authority of the Supreme Court
of Ohio.
(No. 92-286 -- Submitted February 10, 1993 -- Decided June
23, 1993.)
Appeal from the Court of Appeals for Cuyahoga County, Nos.
59445 and 59496.
On June 1, 1987, appellee Emanuel H. Hecht filed a
complaint for libel and slander against appellant Michael D.
Levin. Levin answered and cross-claimed against the Cuyahoga
County Bar Association ("the bar association"). The impetus
for Hecht's lawsuit was a complaint that Levin had lodged
against him with the bar association in June 1986. Levin's
grievance alleged that Hecht, an attorney, knowingly caused
Hecht's father, Jacob Hecht, to sign a "paper" while Jacob was
incompetent, and that this action resulted in a monetary loss
to Jacob. (Levin states that he is the grandson of Jacob
Hecht's wife, Esther Hecht.)
The trial court initially denied Levin's motion to
dismiss, in which he argued that the statements in his
grievance were absolutely privileged against an action for

slander and libel. On February 9, 1990, however, the court
granted Levin's motion for summary judgment as well as the bar
association's motion to dismiss Levin's third-party complaint.
Hecht appealed this order to the Eighth District Court of
Appeals. On March 7, 1990, before Hecht appealed, the trial
court vacated its previous denial of Levin's motion to
dismiss. The court of appeals consolidated the appeal of this
order with the prior appeal. The court of appeals reversed,
holding that "[t]he absolute privilege does not apply in
situations where a dissatisfied litigant complains to the bar
association about the conduct of an attorney who did not
represent him." Finding genuine issues of fact to exist, the
court of appeals remanded the cause to determine whether
Levin's statements were libelous and/or slanderous and whether
there was publication of the statements.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Richard E. Kleinman, for appellee.
Morris Levin Co., L.P.A., Morris Levin and Daniel J.
Levin; Levin & Levin and James A. Levin; Paris & Paris and
Thomas A. Paris, for appellant.
Albert L. Bell; Arter & Hadden and Geoffrey Stern, urging
reversal for amicus curiae, Ohio State Bar Association.
Lee I. Fisher, Attorney General, and Loren L. Braverman,
Assistant Attorney General, urging reversal for amici curiae,
Board of Commissioners on Grievances and Discipline of the
Supreme Court of Ohio and Office of Disciplinary Counsel.

Moyer, C.J. We are asked to decide what privilege
attaches to statements made in a grievance filed with a
certified grievance committee of a local bar association. For
the reasons stated below, we hold that it is an absolute
privilege.
As an initial matter, we address Levin's argument that
Hecht cannot maintain a defamation action because the filing of
a grievance, which is confidential, is not a publication. The
publication of defamatory matter is an essential element to
liability for defamation. "Publication of defamatory matter is
its communication intentionally or by a negligent act to one
other than the person defamed." 3 Restatement of the Law 2d,
Torts (1965), Section 577(1). Any act by which the defamatory
matter is communicated to a third party constitutes
publication. Id. at Comment a. Also, it is sufficient that
the defamatory matter is communicated to one person only, even
though that person is enjoined to secrecy. See id. at Comment
b. Ohio law recognizes that publication of defamation consists
in communicating it to a person or persons other than the
person libeled. Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243,
72 O.O.2d 134, 138, 331 N.E.2d 713, 718.
Based on the above authority, we hold that appellant's
grievance complaint filed with the local bar association
constituted a publication. For the purposes of defamation,
"publication" does not take on its more common connotation of
widespread dissemination. We discern no reason to disturb the
settled law of defamation and create an exception to the
definition of "publication" for confidential communications to

a bar association.
A statement made in a judicial proceeding enjoys an
absolute privilege against a defamation action as long as the
allegedly defamatory statement is reasonably related to the
proceeding in which it appears. Surace v. Wuliger (1986), 25
Ohio St.3d 229, 25 OBR 288, 495 N.E.2d 939, syllabus. In
Surace, the defendants in a libel action had filed a pleading
in a Racketeer Influenced and Corrupt Organizations Act
("RICO") action that described the plaintiff as an "underworld
figure." The plaintiff was not a party in the RICO action.
This court, after a thorough historical review of the rule of
privilege in judicial proceedings, adopted the rule of absolute
privilege. The sole proviso was that the statement must bear
"some reasonable relation to the judicial proceeding in which
it appears." Id. The fact that the plaintiff was not a party
in the RICO action did not affect the existence of the
privilege. Id. at 234, 25 OBR at 293, 495 N.E.2d at 943.
Although we recognized that the rule caused some hardship to
the plaintiff, who had no alternative remedy to protect his
reputation, we reasoned that the cogent public policy of
guaranteeing the free flow of information in a judicial
proceeding outweighed the hardship to the plaintiff. Id. at
234, 25 OBR at 292, 495 N.E.2d at 943.
We must decide in this case whether filing a grievance
with a local bar association is a "judicial proceeding" within
the meaning of Surace. Section 2(B)(1)(g), Article IV of the
Ohio Constitution grants to this court original jurisdiction in
the discipline of attorneys in Ohio. Pursuant to this
responsibility, this court created Gov.Bar R. V to govern the
disciplinary procedure for members of the bar. As a result,
"[i]t is now well established that *** all matters relating to
the discipline and reinstatement of attorneys at law are
inherently judicial in nature and are exclusively under the
control of the judicial branch of the government." In re
Nevius (1963), 174 Ohio St. 560, 562, 23 O.O.2d 239, 240, 191
N.E.2d 166, 169.
In Gov.Bar R. V(1)(A), we created the Board of
Commissioners on Grievances and Discipline ("the board") to
assist this court in carrying out its disciplinary
responsibilities. The board has exclusive jurisdiction to
recommend disciplinary action against an attorney. Gov.Bar R.
V(2). The board is empowered to receive evidence, preserve the
record, make findings and submit recommendations to this court
concerning complaints of attorney misconduct. Gov.Bar R.
V(2)(B)(1). No complaint can be filed with the board, however,
until it has been investigated by a certified grievance
committee of a bar association or the Disciplinary Counsel and
the committee or counsel has determined that the complaint is
warranted.
The Ohio State Bar Association and any of the local bar
associations can designate a grievance committee which shall,
upon satisfying specific standards, be certified by the board
to investigate allegations of misconduct by members of the bar
and to initiate complaints. Gov.Bar R. V(3)(C). "[A]
Certified Grievance Committee shall investigate any matter
filed with it or that comes to its attention and may file a
complaint [with the board] pursuant to this rule in cases where

it finds probable cause to believe that misconduct has occurred
***." Gov.Bar R. V(4)(C). Gov.Bar R. V sets out specific
requirements for filing a complaint with the board, and a
disciplinary proceeding may be initiated only upon strict
compliance with these requirements. Smith v. Kates (1976), 46
Ohio St.2d 263, 75 O.O.2d 318, 348 N.E.2d 320. Pursuant to its
constitutional mandate, this court has given local bar
associations an essential role in the process of disciplining
members of the bar.
This court's imposition of discipline on an attorney or
judge is only the end point of a process that begins with the
filing of a grievance with a bar association or Disciplinary
Counsel. Under Gov.Bar R. V, in order for the board to
consider a complaint of attorney misconduct and ultimately make
recommendations to this court, a certified grievance committee
(or Disciplinary Counsel) must file a formal complaint based on
an investigation of the alleged misconduct. In order for a
certified grievance committee to take action under Gov.Bar R.
V, someone must bring the alleged misconduct to the committee's
attention. This is usually accomplished when a person with
knowledge of the misconduct files a complaint with his or her
local bar association. This court, therefore, relies on
filings with a local bar association, such as the one at the
very heart of this case, to initiate the Gov.Bar R. V
disciplinary procedure.
Accordingly, we hold that filing a grievance complaint
with a local bar association is a "judicial proceeding" because
such a filing initiates the purely judicial disciplinary
procedure created by this court pursuant to Article IV of the
Ohio Constitution. Because statements made in judicial
proceedings enjoy an absolute privilege, we hold that a
statement made in the course of an attorney disciplinary
proceeding enjoys an absolute privilege against a civil action
based thereon as long as the statement is relevant and material
to the proceeding. The privilege exists irrespective of the
relationship between complainant and attorney, and irrespective
of whether the statement was made in bad faith.
Public policy supports this conclusion. Just as we held
in Surace that the truth-seeking process in litigation demands
the free and unencumbered exchange of statements, so does the
process of maintaining the ethical standards of the legal
profession. A qualified privilege would open the door to
retaliatory suits such as the one in this case and would chill
the reporting of attorney misconduct. Attorneys are
particularly well-armed to vex complainants with retaliatory
lawsuits. A claim of bad faith is easily made, and even if the
defamation suit ultimately fails on its merits, the
complainant, now defendant, must endure the expense, effort and
emotional anguish of defending the suit. We believe to be
overstated the warning that an absolute privilege will open a
"Pandora's box" of grievances against attorneys. The attorney
disciplinary process has been carefully designed to separate
the wheat from the chaff. A grievance is kept private until a
panel of the board makes a finding of probable cause and
certifies it to the board. Gov.Bar R. V(11)(E)(2).
Investigation and independent review of a grievance occur at
several stages before this court makes its own independent

determination of discipline. Gov.Bar R. V(4)(C), 6(D)(1), 6(G)
and 6(K). These procedures assure that clearly frivolous
complaints are summarily dismissed, with little emotional,
professional, or financial toll on the subject of the
complaint. For these reasons, we conclude that the balance
between encouraging people to come forward with legitimate
complaints and protecting attorneys from harassment is best
struck by means of absolute immunity.
In addition, judges and lawyers are obligated by their
codes of ethics to report attorney misconduct of which they
become aware. Canon 3(B)(3) of the Code of Judicial Conduct;
DR 1-103(A). The rule we adopt today encourages judges and
attorneys to observe their codes of professional conduct
without hesitation or fear of retaliation. Lest an attorney
involved in litigation be tempted to initiate a disciplinary
proceeding to gain a tactical advantage over opposing counsel
in litigation, we note that such conduct is itself a
disciplinary violation. DR 7-102(A). Our holding today
applies to civil actions only and does not prevent appropriate
disciplinary action against lawyers who file bogus grievances
to obtain a tactical advantage in a lawsuit.
Finally, we address appellee's argument that R.C. 2305.28
creates a qualified privilege for statements made in attorney
grievance proceedings. R.C. 2305.28, as in effect at the time
the alleged defamation occurred, did not address statements
made by outside persons to peer review or professional
standards review committees. 136 Ohio Laws, Part I, 708. The
statute created a qualified immunity applying only to members
of such committees. Id. In July 1986, one month after
appellant filed his grievance, however, the General Assembly
amended R.C. 2305.28 to include subsection (C), which provided:
"No person who provides information to a peer review
committee or a professional standards review committee of a
state or local professional organization *** without malice and
in the reasonable belief that the information is warranted by
the facts known to him is liable in damages in a civil action
as a result of providing that information." 141 Ohio Laws,
Part I, 449.
Due to a 1992 amendment, subsection (C), slightly
modified, is now labeled subsection (D). S.B. No. 84.
R.C. 2305.28 clearly creates a qualified privilege within
its purview. On its face, moreover, it purports to apply to
grievances filed against lawyers with local bar associations.
For the reasons that follow, however, we hold that it does not.
The statute applies, in addition to attorneys, to
chiropractors, veterinarians, real estate brokers, architects,
engineers, certified public accountants, public accountants,
and registered nurses. Each of these professions has some
internal mechanism for policing professional standards. What
distinguishes the legal profession from these other
professions, however, is the pedigree of that mechanism. No
other profession is supervised directly, by constitutional
mandate, by the judicial branch of government. The internal
policing of these professions takes place at a lower, more
private level. Any involvement of the courts in the discipline
of the members of these professions is indirect. As we
construe the statute, the General Assembly intended the

qualified privilege to apply only to proceedings in
professional standards review committees that are not an
integral part of the process of direct supervision by the
judicial branch.
A contrary reading of the statute would render it
unconstitutional. The Constitution of Ohio places the
supervision of attorneys exclusively in the judicial branch.
Any attempt to circumvent the procedures promulgated by the
Supreme Court of Ohio pursuant to its constitutional mandate is
an impermissible incursion into this court's plenary
authority. Smith v. Kates, supra, 46 Ohio St.2d at 265, 75
O.O.2d at 319, 348 N.E.2d at 322. In Smith, plaintiffs, who
were private citizens, initiated original actions in this
court, seeking discipline of an attorney and a judge pursuant
to R.C. 4705.02. We granted defendants' motions to dismiss
because plaintiffs had failed to comply with the procedures in
Gov.Bar R. V. We further declared that R.C. 4705.02, which
purported to create original jurisdiction in this court, the
courts of appeals, and the courts of common pleas over attorney
disciplinary matters, to be "of no force and effect with regard
to our jurisdiction over the discipline of attorneys." Id. at
266, 75 O.O.2d at 319-320, 348 N.E.2d at 322. We further
declared, "[o]ur authority is exclusive and absolute. A
disciplinary proceeding may be initiated only by compliance
with Gov. [Bar] R. V." Id. at 266, 75 O.O. 2d at 320, 348
N.E.2d at 322.
R.C. 2305.28, if construed as urged by appellee, would be
a more subtle but no less invalid intrusion upon our
authority. The existence and nature of a privilege for
disciplinary complaints affects the viability of the process.
If, for example, the General Assembly had prohibited private
citizens, non-clients, or non-parties from filing any complaint
against an attorney, it would be a clear violation of the
judiciary's plenary power over attorney discipline. The
difference between this hypothetical and the weakening of the
privilege is one of degree and not of kind.
A closely analogous case decided by a sister state
bolsters our reasoning. In Ramstead v. Morgan (1959), 219 Ore.
383, 347 P.2d 594, the Supreme Court of Oregon held that
statements made against an attorney in a grievance proceeding,
which it termed "quasi-judicial," are absolutely privileged
against libel and slander actions. In Ramstead, just as in the
instant case, a state statute purported to grant a qualified
privilege to persons making complaints as to the conduct of an
attorney. The Oregon Supreme Court declared the statute void
as a serious and unconstitutional incursion into its own
exclusive domain. Id. at 399-400, 347 P.2d at 601-602. We
share the Oregon court's conviction regarding the gravity of a
legislative alteration of the privilege.
For these reasons, we hold that: (1) a complaint filed
with the grievance committee of a local bar association is part
of a judicial proceeding; (2) a statement made in the course of
an attorney disciplinary proceeding enjoys an absolute
privilege against a civil action based thereon as long as the
statement bears some reasonable relation to the proceeding; and
(3) R.C. 2305.28 does not apply to attorney disciplinary
proceedings held under the authority of the Supreme Court of

Ohio. The judgment of the court of appeals is reversed.
Judgment reversed.
A.W. Sweeney, Wright, Resnick and F.E. Sweeney, JJ.,
concur.
Douglas and Pfeifer, JJ., dissent.
Pfeifer, J., dissenting. In the business of practicing
law, reputation is a successful attorney's greatest asset. To
leave something of such value open to the prey of the malicious
makes little sense.
Access to Ohio's courts is guaranteed to all Ohioans.
"***[E]very person, for an injury done him in his land, goods,
person or reputation, shall have remedy by due course of
law***." (Emphasis added.) Section 16, Article I, Ohio
Constitution. The Constitution does not exclude attorneys from
this guarantee. By establishing an absolute privilege for
those who report attorneys to bar associations, we relegate
lawyers to second-class citizenship -- permitted to protect the
reputation of others, but not their own.
The majority overestimates the added deterrent effect that
the absolute privilege will have on lawyers who are inclined to
file retaliatory lawsuits against those who report them to the
bar associations. Under current provisions of the law,
attorneys are unlikely to engage in malicious, retaliatory
conduct because of the ramifications of Civ. R. 11. An
attorney filing a groundless suit may also be subject to
disciplinary action: "*** [A] lawyer shall not
*** [f]ile a suit, assert a position, conduct a defense ***when
he knows or when it is obvious that such action would serve
merely to harrass or maliciously injure another." DR
7-102(A)(1).
Extension of absolute immunity amounts to an unneeded,
unconstitutional shield which obstructs the ability of an
innocent, conscientious attorney to protect his or her
reputation.
Douglas, J., concurs in the foregoing dissenting opinion.