Today we decide that the appellee-defendant attorney’s alleged defamatory statements that he made against his former clients, the appellants-plaintiffs, were protected on the grounds of qualified privilege.
Appellants-plaintiffs James Gagan, Fred Wittlinger, Jack Allen, and Eugene Deutsch (collectively, Gagan) appeal the trial court’s grant of summary judgment in favor of appellee-defendant C. Joseph Yast, on their claim against Yast for defamation. Specifically, Gagan argues that the trial court erred in determining, as a matter of law, that the alleged defamatory statements that Yast made were protected on the grounds of qualified privilege. Gagan maintains that the doctrine of privilege does not apply in these circumstances and, therefore, a genuine issue of material fact remains and the matter should be remanded for trial. Concluding that the trial court properly granted Yast’s motion for summary judgment, we affirm.
This case involves a single, private, attorney-client communication which not only involved a common interest, but was a disclosure the lawyer had a duty to make under Indiana Rule of Professional Conduct 1.7. Indeed, Yast not only had a common interest with Jamie in the Think Tank Litigation, but an absolute duty to communicate with Jamie about the reasons for his conflict of interest. Ind. R.Prof.Conduct 1.7.
The designated evidence shows that Yast truthfully and correctly believed that he had to disclose his conflict to Jamie. Yast then acted upon his belief by making the required disclosure and withdrawing from the litigation. Yast’s testimony, his actions, and the decision of the Disciplinary Commission all establish that Yast made his disclosure in good faith as a matter of law.
In this case, there is absolutely no evidence that Yast’s disclosure was primarily motivated by ill will, in that the statement did not go beyond the scope of the purpose of this privilege. Holcomb v. Walter’s Dimmick Petroleum, Inc., 858 N.E.2d 103, 106-07 (Ind. 2006). Indeed, the evidence shows that Yast made a private phone call to inform Jamie that Yast had a conflict of interest and had to withdraw. Appellant’s App. p. 568-70; 575-80. Yast used this privilege for its intended purpose, namely to inform his client of a matter that affected their common interest, and to make a disclosure that he was ethically required to make. Because Yast’s actions did not go beyond the scope of the privileged occasion there can be no showing of ill will or ‘actual malice.’ Williams v. Tharp, 914 N.E.2d 756, 764 (Ind. 2009).
KIRSCH, J., and BROWN, J., concur.