Friday, May 3, 2013

Judge denies emotional distress suit

Says attorney’s letter ‘inartful,’ but protected by privilege

Express Staff Writer

Keith Roark

Fifth District Court Judge Jonathan Brody rejected on Tuesday a claim by the wife of Sun Valley City Councilman Nils Ribi that the actions of an opposing attorney had intentionally caused her emotional distress.
    Patricia Brolin-Ribi filed the claim against attorney Jim Donoval in December 2011. Brolin-Ribi had filed the complaint over an email correspondence sent to her in November 2011 by Donoval that advises Brolin-Ribi of litigation Donoval and his wife, then-Sun Valley City Administrator Sharon Hammer, planned to file “if Nils does not resign from the Sun Valley City Council.”
    In granting a motion for partial summary judgment on that claim, Brody ruled that the “letter” was protected as pre-litigation communication. Donoval filed the motion for summary judgment in January 2012.
    “[T]he letter is conduct or communication in relation to the representation of Mr. Donoval’s client,” Brody states in his decision. “The letter gives notice of impending litigation, why the litigation will be initiated … and what must be done to avoid litigation. … It is clearly a demand letter of sorts, and demand letters and settlement negotiations are the type of conduct protected by the litigation privilege.”
    In June, Brody tossed out two defamation claims filed by Ribi over written statements sent to city officials in November 2011 alleging that Ribi suffered from mental instability. Pursuant to a motion for partial summary judgment on those claims, Brody ruled similarly that the statements were protected as pre-litigation communication.
    “The public policy supporting the broad litigation privilege is to free attorneys to zealously advocate for their clients without fear of subsequent litigation,” he wrote in that decision.
In Brody’s recent decision filed in April, he states that Donoval’s letter to Brolin-Ribi is “decidedly inartful,” “an aggressive tactic” and includes “a number of threats.” However, he also states that in Idaho, litigation privilege should apply to actions taken by attorneys in representing their clients, unless the plaintiff can show that the attorney has stepped outside the scope of representation, or has acted “solely” in self interest.

“This is a sad ruling for the legal profession, as well as society in general.”
Keith Roark
Ribi attorney

“Ms. Brolin-Ribi pled facts tending to show that Mr. Donoval does not like her or her husband, and that he may have had ulterior motives in sending the letter,” Brody states in his decision. “However, this is not enough to show that Mr. Donoval was acting solely for his own interests.”  
At a hearing for the motion in March, the Ribis’ attorney, Keith Roark, argued that Donoval sent the email in an attempt to appeal emotionally to Brolin-Ribi. He said Donoval did not write the correspondence on his professional letterhead and that its first sentence does not establish Donoval’s position as Hammer’s attorney, but instead refers to a friendship between Donoval and Brolin-Ribi.
    “The letter was simply addressed to ‘Patti,’” Brody states in his decision. “Therefore, Mr. Donoval’s contention that the letter was simply a sincere attempt to contact the attorney of Mr. Ribi is not persuasive. Nonetheless, the letter is conduct or communication in relation to the representation of Mr. Donoval’s client.”
    In an interview after the ruling, Roark said he and the Ribis are disappointed with the ruling and are considering an appeal.
    “The effect of the ruling is that Mr. Donoval is permitted to commit clear and grievous defamation on the grounds that he is acting as a lawyer in defense of his wife’s laughable claims,” he said.
    Roark said that if anyone else published the “falsehoods that seem to be Mr. Donoval’s stock and trade,” then that person would be held accountable in a court of law.
    “Apparently, lawyers need not obey the very rules they insist be followed by others,” he said. “This is a sad ruling for the legal profession as well as society in general.”
    A counterclaim filed by Donoval in January 2012 against Ribi and Roark is still pending.
    In the counterclaim, Donoval contends that Ribi defamed him by questioning his credibility as a lawyer in a document filed by Roark in a separate case. Donoval also contends that Ribi’s alleged harassment of Hammer caused Donoval emotional distress.
    “Nils Ribi claims I am not credible as a lawyer, and yet I was able to get a judge to dismiss both his and his wife’s claims against me,” Donoval said in an interview after Brody’s ruling. “That seems to make me a pretty credible lawyer.”

Brennan Rego:

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