March 30, 2011 – Helena Chemical Company v. Pamela Uribe, Linda Thomas, individually and as representative of Thomas & Wan, L.L.P., and Thomas & Wan, L.L.P., and Arturo Uribe, No. 29,567

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: March 30, 2011
NO. 29,567
HELENA CHEMICAL COMPANY,
Plaintiff-Appellant,
v.
PAMELA URIBE, LINDA THOMAS,
individually and as representative of
THOMAS & WAN, L.L.P., and
THOMAS & WAN, L.L.P.,
Defendants-Appellees,
and
ARTURO URIBE,
Defendant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Jerald A. Valentine, District Judge

Jackson Walker L.L.P.
Robert L. Soza, Jr.
Elena P. Villaseñor
San Antonio, TX
Simons Firm, LLP
Frank M. Bond
Faith Kalman Reyes
Santa Fe, NM
for Appellant
Juarez Law Office
Luis B. Juarez
Las Vegas, NM
Freedman, Boyd, Hollander, Goldberg,
Ives & Duncan, P.A.
Sara Berger
Albuquerque, NM
for Appellee Pamela Uribe
Law Office of Jack Brant, P.C.
Jack Brant
Albuquerque, NM
Rodey, Dickason, Sloan, Akin & Robb, P.A.
Charles K. Purcell
Albuquerque, NM
for Appellees Linda Thomas and Thomas & Wan, L.L.P.

OPINION
SUTIN, Judge.
{1} 	This appeal tests the defense of absolute immunity against liability for alleged
defamatory statements made to news reporters. The immunity asserted is based on
absolute privilege. 	Throughout this opinion, we refer to the immunity and the
privilege as “absolute privilege.” 	Before and after attorney Linda Thomas filed a
toxic tort action in Santa Fe County against Helena Chemical Company (Helena) on
behalf of Arturo and Pamela Uribe and other plaintiffs, Ms. Thomas and Mrs. Uribe
made statements to news reporters that Helena claims, in this separate action, were
defamatory. The district court granted summary judgment in favor of Ms. Thomas
and Mrs. Uribe holding that they were immune from liability based on their defense
of absolute privilege. 	The issues on appeal center on whether the court erred in
granting that immunity as to (1) statements made at a community meeting attended by
a news reporter ten months before a judicial proceeding was initiated, and (2)
statements made the day after the proceeding was initiated to news reporters who were
invited to hear the statements. 	We hold that the absolute privilege is unavailable
under the circumstances in this case where the alleged defamatory statements were
made to news reporters who had no relationship or interest in the judicial proceeding
contemplated and filed.

2
BACKGROUND
{2} 	Helena is a crop protection company that started business in Mesquite, New
Mexico in 1989. In October 2008, the Uribes, among other residents of Mesquite,
filed an action against Helena (the October 2008 tort action) alleging personal injury
and property damage from “exposure to hazardous dusts, fumes, and contaminants
emanating from [Helena].” They averred, among other facts to support their claims,
that the New Mexico Environment Department (NMED) had accused Helena of
violating New Mexico environmental standards, had issued notices to Helena
regarding violations of Helena’s air quality permit, had assessed a penalty against
Helena, had confirmed contamination by Helena of underground water, and had fined
Helena regarding an unreported spill.
{3} 	Before their October 2008 tort action, in December 2007, Mr. Uribe hosted a
meeting to which the public at large was invited through public advertisements. Mr.
Uribe also invited Heath Haussamen, a political news reporter, writer, editor, and
publisher of a website blog called “Heath Haussamen on New Mexico Politics.” Mr.
Haussamen attended the meeting solely in his “capacity as a news reporter/writer who
covers New Mexico.”
{4} 	In addition, Mr. Uribe and Mesquite residents invited Ms. Thomas and Michelle
Wan, Texas licensed attorneys, to attend the December 2007 meeting to discuss

3
matters relating to and possible litigation against Helena, and Ms. Thomas spoke at
the meeting. 	Residents were contemplating a lawsuit against Helena and were
interested in hiring Ms. Thomas and Ms. Wan to represent them. Mr. Uribe and other
residents were aware that Ms. Thomas and Ms. Wan had sued Helena in Texas. Mr.
Uribe, who was president of the Mesquite Community Action Committee, and who
had been involved for several years with the Helena air quality and contamination
issues, opened the meeting and invited those in attendance to talk to the attorneys
about how they felt as to their health and future in Mesquite. Ms. Thomas and Ms.
Wan were later hired to represent the Uribes and other residents in the October 2008
tort action against Helena. On October 9, 2008, the day after that action was filed, a
press conference was held by the attorneys outside of Helena’s facility to announce
the filing of the action (the press conference).
{5} 	Helena filed the present defamation action on December 8, 2008, alleging that
statements made by Ms. Thomas at the December 2007 meeting and statements made
by Ms. Thomas and Mrs. Uribe at the press conference were defamatory. 	Helena
alleged that the following statement made by Ms. Thomas at the December 2007
meeting was defamatory: “[C]hildren are out here and they’re playing in the yard,
they’re putting their hands in their mouth, so they’re really getting a dose that way.
Kids are at a much greater risk.” Helena further alleged that Ms. Thomas defamed it

4
when she reportedly said that Helena’s actions in Mesquite appeared to be “pretty
egregious.” 	In addition, Helena claimed that at the press conference Ms. Thomas
defamed Helena by stating that “[t]he underground water has been contaminated” and
that Mrs. Uribe defamed Helena by stating that Helena caused “[u]pper respiratory
problems, pneumonia and bad allergies, bloody noses[.]”
{6} 	In a summary judgment proceeding filed by Ms. Thomas and Mrs. Uribe to
establish their defense of absolute privilege as to Helena’s defamation claims, Ms.
Thomas and Mrs. Uribe necessarily assumed for the purposes of the motion for
summary judgment that their statements were defamatory. 	The absolute privilege
defense can be asserted only against statements admittedly defamatory. 	We
emphasize that, on appeal, the same assumption holds for the purposes of our analyses
and determinations. We reverse.
DISCUSSION
Standard of Review
{7} 	“An absolute or unqualified privilege means absolute immunity from liability
for defamation.” 	Neece v. Kantu, 84 N.M. 700, 705, 507 P.2d 447, 452 (Ct. App.
1973). “The question of the relationship between the alleged defamatory matter and
the proposed or existing judicial proceeding is a question of law to be determined by
the court.” 	Penny v. Sherman, 101 N.M. 517, 520, 684 P.2d 1182, 1185 (Ct. App.

5
1984). 	We review the absolute-privilege-entitlement issue de novo. 	See Gregory
Rockhouse Ranch, L.L.C. v. Glenn’s Water Well Serv., Inc., 2008-NMCA-101, ¶¶ 16-
19, 144 N.M. 690, 191 P.3d 548.
The Issues at Hand
{8} 	Helena’s appellate points are that the defense of absolute privilege does not
apply to the alleged defamatory statements because (1) Ms. Thomas’s December 2007
statements were made ten months before the October 2008 tort action was filed, a
period “too far in advance of litigation, and/or . . . at a time when she did not have any
clients, and thus could not seriously have considered any claims”; and (2) the
December 2007 meeting and the press conference statements made by Ms. Thomas
and Mrs. Uribe were communicated to and received by news reporters who were
wholly uninterested in and unrelated to the judicial proceeding.
{9} 	Helena emphasizes that whether absolute privilege can be applied in this case
is an important matter of public policy. On the issue of public policy, Helena asks:
Does the State of New Mexico want to encourage[:]
1. 	trials by press?
2. 	attorneys defaming third parties to the general public as a
means of attracting potential clients?
3. 	defamation so remote in time from the filing of a
lawsuit or at a time when litigation is only a bare
possibility?

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The Law of Absolute Privilege in New Mexico
{10} 	This Court recognized early on that the standard for ascertaining the extent of
the absolute privilege is whether the alleged defamatory matter is reasonably related
to the subject of inquiry. Stryker v. Barbers Super Mkts., Inc., 81 N.M. 44, 45-46, 462
P.2d 629, 630-31 (Ct. App. 1969). 	Stryker described the public-policy reason for
absolute privilege as follows:
The absolute immunity of parties litigant rests upon the public
policy which deems it desirable that all suitors, whether malicious and
bold, or conscientious and timid, should have free access to the
conscience of the State with whatever complaint they choose to make.
This is necessary to a thorough and searching investigation of the
truth. . . . Perfect freedom to say in their pleadings whatever the parties
choose to bring to the consideration of the court or jury tends obviously
to promote the intelligent administration of justice.
Id. at 45, 462 P.2d at 630 (internal quotation marks and citation omitted).
{11} 	Also early on, this Court adopted the Restatement of Torts § 586 (1938),
relating to absolute privilege which stated:
An attorney at law is absolutely privileged to publish false and
defamatory matter of another in communications preliminary to a
proposed judicial proceeding, . . . or during the course and as a part of a
judicial proceeding in which he participates as counsel, if it has some
relation thereto.
Romero v. Prince, 85 N.M. 474, 476, 513 P.2d 717, 719 (Ct. App. 1973) (internal
quotation marks and citation omitted). 	Romero clarified that “[i]f the alleged
defamatory statement is made to achieve the objects of the litigation, the absolute

7
privilege applies even though the statement is made outside the courtroom and no
function of the court or its officers is invoked.” 	Id. at 477, 513 P.2d at 720. 	And
Romero articulated the standard that defamatory statements made during the course
of, as a part of, and reasonably related to a judicial proceeding were absolutely
privileged. Id.
{12} 	Section 586 was continued in the Restatement (Second) of Torts § 586 (1977),
essentially unchanged from the 1938 version on which the Romero Court relied.
Penny, 101 N.M. at 519-20, 684 P.2d at 1184-85. Citing to comment (a) in the later
Restatement, we stated in Penny that “[t]he absolute privilege is based upon a public
policy of securing to attorneys as officers of the court the utmost freedom in their
efforts to secure justice for their clients.” Id. at 520, 684 P.2d at 1185. In addition,
this Court stated that “[a]ll doubt should be resolved in favor of recognizing the
privilege.” Id.
{13} 	The issue in Penny was whether the district court erroneously failed to
recognize what one party interpreted Romero to require, namely, that publication to
a person with a direct interest in the judicial proceeding was an essential element of
the absolute-privilege defense. 	Penny, 101 N.M. at 520, 684 P.2d at 1185. 	Penny
explained that publication to a person with a direct interest was not an independent
element of the defense but, instead, was “one factor in the analysis of whether a

8
publication ha[d the required] relation to a judicial proceeding” to permit the defense.
Id.
{14} 	The Court in Penny offered a canvass of other cases, stating that “[s]everal
courts have recognized absolute immunity for publication to an individual or
organization without a direct interest in the relevant proceeding where the recipient
nonetheless had some interest in the proceeding.” 	Id. 	Yet, citing cases involving
communications with a newspaper and with a company’s customers, this Court also
“recognize[d] 	that 	courts 	have 	refused 	to 	apply 	the 	absolute 	privilege 	to
communications made to recipients wholly unrelated to the proceeding.” Id. at 521,
684 P.2d at 1186.
{15} 	This Court’s latest absolute-privilege case is Gregory Rockhouse Ranch in
which the defendant counterclaimed alleging slander of title. 2008-NMCA-101, ¶ 17.
The primary issue relating to absolute privilege was the temporal proximity of the
alleged defamation to the initiation of judicial proceedings. 	Id. ¶ 19. 	The slander
claim was predicated on letters dated between September 1999 and June 2000 sent by
the plaintiff to governmental entities several months before the initiation of judicial
proceedings in December 2000. 	Id. 	As to the timing of the letters in relation to
initiation of judicial proceedings, the Court stated:
[W]e find no authority to support extension of this privilege to
communications made so far in advance of litigation. Nor do we find

9
any indication that litigation was seriously contemplated at the time that
the communications were made. We regard this as fatal to [the] claim of
absolute privilege.
Id. 	In support of this ruling, the Court Restatement (Second) of Torts § 587 cmt. e
(1977) as “observing that, with respect to communications which are preliminary to
a judicial proceeding, the absolute privilege applies only if a proceeding is
contemplated in good faith and under serious consideration at the time the
communication is made.” 	Gregory Rockhouse Ranch, 2008-NMCA-101, ¶ 19
(internal quotation marks omitted). The Restatement (Second) of Torts § 587 reads
in full:
A party to a private litigation or a private prosecutor or defendant in a
criminal prosecution 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 participates, if the matter has
some relation to the proceeding.
{16} 	To summarize New Mexico defamation case law, the absolute-privilege defense
is available when an alleged defamatory statement is made to achieve the objects of
the litigation and is reasonably related to the subject matter of the judicial proceeding.
As part of the absolute-privilege analysis, we consider the extent to which the
recipient of the statement had an interest in the judicial proceeding. 	When the
statement precedes initiation of the judicial proceeding, the privilege is available only
if the proceeding in question is contemplated in good faith and under serious

10
consideration at the time the statement is made. We add that cases such as this must
be decided on a case-by-case basis with the outcome depending on the particular facts
of the case. See Asay v. Hallmark Cards, Inc., 594 F.2d 692, 698 (8th Cir. 1979) (“A
case-by-case evaluation must be made to determine whether the publication fits within
the . . . privilege.”).
The Pre-Action Statements in Relation to a Contemplated Proceeding
{17} 	Ms. Thomas’s pre-action statements at the December 2007 meeting raise the
question, under the test in Gregory Rockhouse Ranch, whether such statements are
protected by absolute privilege. 	This depends on whether the proceeding is
contemplated in good faith and is under serious consideration. The facts show that,
in this regard, the statements fit within the privilege.
{18} 	Residents of the Mesquite community were concerned with what they believed
to be a historical, existing, and continuing environmental hazard to their community
caused by Helena, and they sought out Ms. Thomas. She was an attorney who was
knowledgeable on the environmental issues and who had engaged Helena and others
in environmental litigation in Texas. 	Residents invited Ms. Thomas to attend the
December 2007 meeting to discuss the environmental issues and the possibility of
filing a judicial proceeding against Helena. Residents and Ms. Thomas were aware
of the history of NMED actions against Helena. The facts support the conclusion that,

11
at the time of the December 2007 meeting, the residents responsible for holding the
meeting and Ms. Thomas in good faith contemplated and gave serious consideration
to initiating a judicial proceeding, thereby falling within the test in 	Gregory
Rockhouse Ranch. See 2008-NMCA-101, ¶ 19.
{19} 	Furthermore, we see no facts indicating that the intervening time between the
December 2007 meeting and the October 2008 initiation of the judicial proceeding
diminished the residents’ contemplation and consideration of filing a judicial
proceeding. Following the meeting, Ms. Thomas was retained and a complaint was
ultimately filed. That months passed during the processes of retaining Ms. Thomas
followed by her preparation and filing of the judicial proceeding was not, in this case,
a basis on which to deny the absolute-privilege defense. Good faith contemplation
and serious consideration reasonably ripened into further activity toward a judicial
proceeding.
Statements Made to Invited News Reporters
{20} 	Statements were made to news reporters both before and after the filing of the
October 2008 tort action. 	It seems to be understood that the invitations to news
reporters to attend the December 2007 meeting and the press conference were
extended with the desire to inform the public through the news media about the
residents’ environmental and health concerns and activities related to Helena, if not

12
also to inform the public that a judicial proceeding was contemplated or initiated. It
appears to be undisputed that the news reporters attended solely in their capacities as
news reporters. The statements about which Helena complains were reported in the
news media. We see no evidence in the record, and Ms. Thomas and Mrs. Uribe point
to none, showing that the news persons involved were otherwise in any way related
to or in any way held an interest in the judicial proceeding.
The Law Relating to Statements to the Press
{21} 	A considerable number of cases consider as an element in an absolute-privilege
analysis whether the recipient is in any way related to or has an interest in the
proceeding. Although sometimes expressed in different ways, the rule in these cases
is that statements communicated to news media recipients who are wholly unrelated
to and have no interest in the judicial proceeding are not protected by absolute
privilege.
{22} 	We start with the mainstay case of Kennedy v. Cannon, 182 A.2d 54 (Md.
1962), which is referred to in Penny, and the mainstay cases of Asay, 594 F.2d 692,
and Green Acres Trust v. London, 688 P.2d 617 (Ariz. 1984) (en banc). In Kennedy,
a communication to a newspaper editor by an attorney who had interviewed a
defendant charged with rape gave rise to the alleged defamation and a suit for
defamation by the victim of the rape. 182 A.2d at 55-56. The victim’s suit was based

13
on an allegation that the attorney’s words charged her with the crime of adultery. Id.
Following the Restatement of Torts § 586 and various cases, the court in Kennedy held
that the absolute privilege would not be extended to statements outside the purview
of the judicial proceeding and “spoken before persons in no way connected with the
proceeding.” 182 A.2d at 58. The court held that the statements to the newspaper
were not absolutely privileged, stating that all of the cases on which it relied “make
it obvious that aside from any question of ethics, an attorney who wishes to litigate
his case in the press will do so at his own risk.” Id.
{23} 	Following the Kennedy guideline, the court in Asay stated that “[i]n determining
whether an occasion is absolutely privileged, the pivotal factor is frequently to whom
the matter is published” and that “[p]ublication to the news media is not ordinarily
sufficiently related to a judicial proceeding to constitute a privileged occasion.” Asay,
594 F.2d at 697; see Converters Equip. Corp. v. Condes Corp., 258 N.W.2d 712, 717
(Wis. 1977) (holding that “for the absolute privilege to attach[,] the statement at issue
must have been published on an occasion or in a context [which] is an integral part of
the judicial or quasi-judicial proceeding involved”). The court in Asay held that Iowa
law did “not grant an absolute privilege for the dissemination of a complaint to news
services.” 594 F.2d at 699.

14
{24} 	Following the Asay guideline, in Green Acres Trust, the court held that the
absolute privilege was unavailable to an attorney where a newspaper reporter at a
press conference “had no relation to the proposed class action[,] . . . played no role in
the actual litigation[,] . . . [and] lacked a sufficient connection to the proposed
proceedings[.]” Green Acres Trust, 688 P.2d at 622-23. The court further stated that
“[t]he press conference simply did not enhance the judicial function[.]” 688 P.2d at
623. 	Green Acres Trust held that, in analyzing whether an alleged defamatory
statement is related to a judicial proceeding, “both content and manner of extra-
judicial communications must bear some relation to the proceeding.” 	Id. at 622
(internal quotation marks omitted). In reaching this determination, the court agreed
with the analysis in Asay that “the application of the absolute[-]privilege defense was
dependent upon an analysis of the occasion for the communication and the substance
of the communication.” 	Green Acres Trust, 688 P.2d at 622. 	The court in Green
Acres Trust also agreed with the Asay court’s views “that the recipient of the extra-
judicial communication [must] have some relationship to the proposed or pending
judicial proceeding for the occasion to be privileged[.]” Green Acres Trust, 688 P.2d

1 See Jones v. Clinton, 974 F. Supp. 712, 731 (E.D. Ark. 1997); Seidl v.
Greentree Mortg. Co., 30 F. Supp. 2d 1292, 1313-14 (D. Colo. 1998); Davidson v.
Cao, 211 F. Supp. 2d 264, 275 (D. Mass. 2002); Webster v. Byrd, 494 So. 2d 31, 35
(Ala. 1986); Rothman v. Jackson, 57 Cal. Rptr. 2d 284, 292, 294 (Ct. App. 1996);
Bradley v. Hartford Accident & Indem. Co., 106 Cal. Rptr. 718, 723 (Ct. App. 1973),
overruled on other grounds by Silberg v. Anderson, 786 P.2d 365 (Cal. 1990) (in
bank); Kennedy v. Zimmermann, 601 N.W.2d 61, 66 (Iowa 1999); Williams v. Kenney,
877 A.2d 277, 290-91 (N.J. Super. Ct. App. Div. 2005); Cappello v. Scott, 644 A.2d
102, 102-03 (N.J. Super. Ct. App. Div. 1994); Andrews v. Elliot, 426 S.E.2d 430, 432-
33 (N.C. Ct. App. 1993); Brown v. Gatti, 99 P.3d 299, 305 (Or. Ct. App. 2004), aff’d
in part and rev’d in part on other grounds, 145 P.3d 130 (Or. 2006); Bochetto v.
Gibson, 860 A.2d 67, 73 (Pa. 2004); Barto v. Felix, 378 A.2d 927, 930 (Pa. Super. Ct.
1977); Pratt v. Nelson, 2007 UT 41, ¶¶ 46-48, 164 P.3d 366; see also Prosser &
Keeton on The Law of Torts § 114, at 820 (5th ed. 1984) (stating that “[i]t is clear . .
. that statements given to the newspapers concerning the case are no part of a judicial
proceeding, and are not absolutely privileged”); 1 Goeffrey C. Hazard, Jr. & W.
William Hodes, The law of Lawyering § 4.15, at 4-73 (3d ed. 2001) (citing Kennedy
and Seidl and stating that “[s]tatements made at press conferences . . . are generally
not considered sufficiently related to the litigation itself to qualify for the privilege”);
Douglas R. Richmond, The Lawyers’ Litigation Privilege, 31 Am. J. Trial Advoc. 281,
324 (2007) (stating that “the great weight of authority indicates that lawyers’
statements to the press are not related to judicial proceedings and therefore are not
absolutely privileged”); Grace M. Giesel, Defamation Liability for Attorney Speech:
A Policy-Based and Civility-Oriented Reconsideration of the Absolute Privilege for
Attorneys, 10 Ga. St. U. L. Rev. 431, 469 (1994) (stating that “[f]ortunately, courts
and commentators agree that letters and other communications to the media do not
benefit from an absolute privilege”).
15
at 622. A strong majority of cases agree with the Kennedy, Asay, and Green Acres
Trust analyses, rules, or results. 1
{25} 	In their answer briefs, Ms. Thomas and Mrs. Uribe rely on two Texas Court of
Appeals cases to justify the absolute-privilege defense, namely, Dallas Independent

16
School District v. Finlan, 27 S.W.3d 220 (Tex. Ct. App. 2000), and Hill v. Herald-
Post Publishing Co., 877 S.W.2d 774 (Tex. Ct. App. 1994), aff’d in part, rev’d in part
on other grounds, 891 S.W.2d 638 (Tex. 1994). 	See Daystar Residential, Inc. v.
Collmer, 176 S.W.3d 24, 28 (Tex. Ct. App. 2004) (following Hill and Finlan and
stating that “[j]ust as the mere delivery of pleadings in pending litigation to the news
media does not amount to publication outside of the judicial proceedings that would
result in a waiver of the absolute privilege, a press release advising the media that a
lawsuit has been filed, including a basic description of the allegations, does not
amount to publication outside of the judicial proceedings resulting in a waiver of the
absolute privilege”). 	These cases, along with a Nebraska decision, represent a
minority view on the issue. See Prokop v. Cannon, 583 N.W.2d 51, 58-59 (Neb. Ct.
App. 1998) (stating that the absolute privilege “is confined to statements made by an
attorney while performing his function as such” and that the privilege was “available
only when the defamatory matter has some reference to the subject matter of the
proposed or pending litigation, although it need not be strictly relevant to any issue
involved in it[,]” but nonetheless finding “that the statements made to the news media
were well within the privilege” (internal quotation marks and citation omitted)).
{26} 	In Finlan, attorneys for the school district issued a written press release
announcing that the school district had, that day, filed a suit against certain former

17
district board of trustees members (the members) for fraud, civil conspiracy, and
racketeering. 27 S.W.3d at 239. The release stated that the time had come to expose
the public to what the members were truly trying to accomplish in suits the members
had initiated against the school district. 	Id. 	The release went on to state that the
members were seeking a $1,650,000 settlement from the district and were “only out
for their own personal gain seeking to create a financial windfall for themselves by
harassing the [school district] with the filing of frivolous lawsuits and seeking the
private bank records of the members[.]” Id. (internal quotation marks omitted). The
members counterclaimed against the school district for defamation, but the trial court
granted summary judgment in favor of the school district based on its absolute
privilege defense. 	Id. at 237-38. 	The court of appeals affirmed the trial court’s
summary judgment, determining that the school district’s petition and the press release
statements “which relate[d] [to] the allegations in [the] petition [were] absolutely
privileged[.]” 	Id. at 239. 	In addition, the court determined that the statements
“relate[d] to pending litigation and settlement efforts.” 	Id. 	Mindful that it “must
resolve all doubt in favor of the relevance of the lawyer’s statement[,]” the court went
on to say “we must extend the privilege to any statement that bears some relation to
a judicial proceeding.” 	Id. 	The court in Finlan relied substantially on Hill and on
Russell v. Clark, 620 S.W.2d 865 (Tex. Ct. App. 1981). 	In Hill an attorney sued

18
another attorney who made statements to a reporter and who delivered court-filed
documents to the reporter. 877 S.W.2d at 777. The court distinguished Green Acres
by pointing out that Hill “involve[d] the mere delivery of documents previously filed
in . . . criminal proceedings and available to the public.” 877 S.W.2d at 783. The
court also held that the attorney’s statement to the reporter “in response to an inquiry
about [the attorney’s] motions . . . bore a substantial relationship to the criminal
proceedings and was made in furtherance of his representation[,]” in that the attorney
was “merely affirming the allegations in his motion and brief and his belief that he
could prove them,” and indicating that this response was one that “many if not most
attorneys would make if queried by the news media about the allegations in a petition
or an indictment.” Id. at 783-84. Russell involved an attorney’s letter to the plaintiffs’
investors “seeking evidence for use in pending litigation.” 620 S.W.2d at 866. The
court was convinced that privilege applied because the content of the letter bore a
relationship to the judicial proceeding. 	Id. at 870. 	Russell did not involve
communications to news reporters.
{27} 	The Texas cases do not specifically include as part of their absolute privilege
analysis the Asay second factor, namely, whether the recipient of the alleged
defamatory communication had any interest in or was related in any way to the
judicial proceeding. We disagree with Ms. Thomas and Mrs. Uribe to the extent they

19
contend that Finlan necessarily stands for the proposition that the occasion of the
defamatory communication or the relationship or interest of the recipient to the
judicial proceeding is not relevant or part of the absolute-privilege analysis. 	The
extent to which the cases might be interpreted to allow the defense on the sole ground
that the content of the statement relates to a judicial proceeding, we reject any such
standard as inadequate. Further, Hill determined that the response to the reporter was
only a reiteration of what was in the court-filed documents. 877 S.W.2d at 783. And
Russell did not involve news reporters. 	For these reasons, Ms. Thomas and Mrs.
Uribe can find no comfort or support in the Texas cases and minority view.
{28} 	In oral argument before this Court, Ms. Thomas placed considerable weight on
Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007), as
well as on other cases, that had not until the argument been cited or argued by Ms.
Thomas, in arguing that the absolute privilege protects an attorney’s pre-proceeding
statements even when the targets or recipients are not known to be persons who have
some interest in the prospective proceeding. These cases do not help Ms. Thomas.
Simpson Strong-Tie involved a newspaper advertisement and a website announcement
each trolling for unknown persons in “an apparent effort to solicit business.” Id. at
20-21. 	The other cases involved targeted solicitations to persons who obviously

CORRECTION: Page 21, line 15: Change “faired” to “fared”. Helena Chemical Co. v. Uribe, No. 29,567 (filed 3/30/11), SVW.
2 The other cases relied on by Ms. Thomas in oral argument are Rubin v. Green,
847 P.2d 1044 (Cal. 1993) (in bank); Finkelstein, Thompson & Loughran v.
Hemispherx Biopharma, Inc., 774 A.2d 332 (D.C. 2001), overruled on other grounds
by McNair Builders, Inc. v. Taylor, 3 A.3d 1132 (D.C. 2010); Kittler v. Eckberg,
Lammers, Briggs, Wolff & Vierling, 535 N.W.2d 653 (Minn. Ct. App. 1995); Samson
Inv. Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327.
20
would have some interest in the contemplated legal proceeding.2 Although the court
in Simpson Strong-Tie held that the attorneys were protected by the absolute privilege,
even though they did not target persons they knew in advance had some interest in the
contemplated proceeding, the court was “not unsympathetic with the plaintiff’s
position” that “untargeted communications by an attorney should fall outside the
permissible scope of the privilege to safeguard against abuse.” Id. at 26. The court
went out of its way to indicate there are limitations on the privilege, stating “that
unnecessary defamatory publications to recipients unconnected with the proposed
proceeding would not be privileged” and that the court was “mindful of the need for
caution in according an absolute privilege for what may be defamatory publications
made preliminary to litigation, we emphasize that attorneys do not have an unfettered
license to defame their adversaries.” Id. And the court quoted language from its 120-
year-old case of Shodden v. McElwee, 5 S.W. 602, 605 (Tenn. 1887), which stated in
part:
[W]e must not lose sight of the fact that it concerns the peace of society;
that the good name and repute of the citizen shall not be exposed to the

CORRECTION: Page 21, line 15: Change “faired” to “fared”. Helena Chemical Co. v. Uribe, No. 29,567 (filed 3/30/11), SVW.
21
malice of individuals, who, under the supposed protection of an absolute
privilege, . . . volunteer defamatory matter in utterances not pertinent.
To hold such persons responsible in damages cannot fairly be said to
hamper the administration of justice.
{29} 	Also in oral argument, Ms.Thomas and Mrs. Uribe asked this Court to decide,
as a matter of law based on the record before us, that the statements attributed to them
were not defamatory. They asserted that if we were to examine the statements and the
surrounding circumstances, under the law of defamation, we would determine that the
statements were not defamatory as a matter of law. We refuse this request to address
the merits of the defamation claims, and we render no opinion regarding the merits of
the defamation claims. As we indicated earlier in this opinion, whether the statements
on which Helena’s claims were based constituted defamation was not at issue on
summary judgment. Ms. Thomas and Mrs. Uribe sought summary judgment under
the assumption that their statements were, in fact, defamatory. It may well be that Ms.
Thomas and Mrs. Uribe could have fared well in terms of expense and success in the
initial stages of the district court proceeding had they first sought summary judgment
on the question whether the statements were defamatory. 	But the issue was not
presented to the district court. Ms. Thomas and Mrs. Uribe chose, instead, to first
seek dismissal at the outset based on their defense of absolute privilege. Whether the
statements were defamatory as a matter of law could perhaps have been decided first
by the district court. Ms. Thomas’s and Mrs. Uribe’s choices remind us somewhat of

3 At oral argument, Ms. Thomas’s counsel stated that there was no evidence
presented to the district court indicating that Ms. Thomas knew that the news reporter
was invited to or present at the December 2007 meeting. This point was not raised in
Ms. Thomas’s answer brief, and her lawyers did not there or in oral argument indicate
where Ms. Thomas raised this in the district court as a possible point to support her
absolute-privilege defense. In oral argument, her counsel did not argue the contention
as a basis on which we should uphold absolute privilege. We have not considered the
contention.
22
Judge Pickard’s sage insight in Gracia v. Bittner, 120 N.M. 191, 192, 900 P.2d 351,
352 (Ct. App. 1995): “Every litigated case is tried at least three times: there is the
trial the attorneys intended to conduct; there is the trial the attorneys actually
conducted; and there is the trial that, after the verdict, the attorneys wished they had
conducted.”
The Court Erred in Applying Absolute Privilege
{30} 	The alleged defamatory statements of Ms. Thomas and Mrs. Uribe are not
entitled to absolute-privilege protection. The statements were heard by news reporters
who had been invited to hear the statements but who had no relationship to or interest
in the judicial proceeding.3 To grant Ms. Thomas and Mrs. Uribe an absolute
privilege in this case would be tantamount to unqualifiedly allowing defamatory
statements by attorneys and parties to news reporters for dissemination to the general
public as long as they could show that the content of the statements related to the

23
subject matter of the judicial proceeding. 	In this case, the reasons for allowing
absolute-privilege protection are significantly outweighed by the reasons militating
against it. As the strong majority of cases portray under various rationales, more than
a relationship of content to judicial proceeding had to exist.
{31} 	In this case, the defamatory statements to invited news media for dissemination
to the general public did not serve the purpose of the judicial proceeding, enhance its
function, or legitimately achieve its objects. The statements did not assist attorneys
in investigating claims or in fully presenting claims in court, which are the traditional
reasons for applying absolute privilege. A not insignificant effect could have been to
taint prospective jurors. Even given that the persons making the statements had in
mind publication and dissemination for an educational purpose, the news media
dissemination of the statements was not a necessary step in the investigation or
presentation of claims and defenses. In weighing the value of reputation against the
value of access to the court, in this case, the value of reputation far outweighed that
of court access, because the publication of defamation by intended use of the news
media was unnecessary and excessive. The courts have a duty to control the judicial
process in such instances to limit the extent to which attorneys and parties are able,
with impunity, to defame.

24
{32} 	There exists enhanced risk of damage to reputation from employing the press
for publication and dissemination of a defamatory statement. 	That enhanced risk
exceeds the risk of damage that may occur when a news reporter might learn of the
proceeding and develop sufficient interest to obtain from the clerk of the court a copy
of a document filed in the court proceeding or sit in a court hearing. 	The judicial
function will not be impaired by placing a limitation on application of the absolute-
privilege defense in this case.
{33} 	We hold that the absolute-privilege defense was erroneously allowed in the
present case where the alleged defamatory statements were made to news reporters
who had no relationship to or interest in the judicial proceeding. Thus, we hold that
the district court erred in granting summary judgment in favor of Ms. Thomas and Ms.
Uribe on the ground of absolute privilege.
{34} 	We understand that a perceived need for application of absolute privilege in
statements to the press stems from the concern that lawsuits with very thin or spurious
grounds for asserting defamation claims will be filed for the purpose of intimidating
parties and their attorneys who are simultaneously pursuing a lawsuit against the party
asserting the defamation claims. Such lawsuits can be challenged in the district court
on the merits, just as Ms. Thomas asked this Court to act on the merits of Helena’s
claims in the present action. Furthermore, qualified privilege and immunity, if the

25
elements are provable, can adequately protect those making the alleged defamatory
statements. See Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilege to
Defame, 54 Ohio St. L.J. 985, 987 (1993) (advocating substitution of a qualified
privilege for the absolute privilege for litigators). In addition, our decision today is
a limiting factor in regard to retaliatory lawsuits brought to intimidate, since we are
addressing only statements made by attorneys or parties to news reporters who have
no interest in or connection with the judicial proceeding and who are invited to receive
the statements for the purpose of dissemination to the public.
CONCLUSION
{35} 	We reverse the district court’s grant of summary judgment in favor of Ms.
Thomas and Mrs. Uribe based on absolute privilege, and remand for further
proceedings.
{36} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
JAMES J. WECHSLER, Judge
_________________________________
MICHAEL E. VIGIL, Judge