Malicious Abuse of Process and The Litigation Privilege


New Mexico, like most states, recognizes that statements made in connection with litigation are privileged from most tort claims. For the litigation privilege to apply, however, the statement must be reasonably related to the litigation, and must be made to achieve the objects of the litigation. See Stryker v. Barbers Super Mkts., Inc., 81 N.M. 44, 45-46 (Ct. App. 1969)(“Stryker”) (one requirement for litigation privilege to apply is the statement must be reasonably related to litigation); Romero v. Prince, 85 N.M. 474, 477 (Ct. App. 1973)(another requirement is statement must be made to achieve the objects of the litigation).

While the litigation privilege immunizes parties and their attorneys from most tort liability, one claim appears to be excepted from the privilege: malicious abuse of process. See Stetter v. Blackpool, LLC, 2010 U.S. Dist. LEXIS 111869 at 5 (D. Ariz. Oct. 19, 2010). (“…parties to litigation are granted an absolute privilege from tort liability with the exception of malicious prosecution and abuse of process claims.”) (emphasis added).[1]

The reasons for excepting malicious abuse of process from the litigation privilege lies in the nature of the claim itself. To state a tenable malicious abuse of process claim, a party must allege the following facts: (1) an improper use of process in a judicial proceeding; (2) a primary motive to accomplish an illegitimate end; and (3) damages. See Durham, 2009 NMSC 7, ¶29. An improper use of legal process may be shown by a either a filing without probable cause, or an irregularity or impropriety suggesting extortion, delay, or harassment. See Durham, 2009 NMSC 7, ¶29.

The first element of a malicious abuse of process claim is the alleged wrongful act was committed in a judicial proceeding. See Durham, 2009 NMSC 7, ¶29; New Mexico Uniform Jury Instruction 13-1636 (a malicious abuse of process involves a misuse of legal process—or active participation in a misuse of legal process—in a judicial proceeding).

One argument for the malicious abuse of process exception is if the litigation privilege were an absolute defense, no claims could ever be brought against lawyers for the wrongful misuse of legal process. Such a result is arguably incompatible with the Supreme Court’s ruling in Durham v. Guest, 2009 NMSC 7. In Durham, the Supreme Court held an attorney may be sued for misusing legal process. Durham, 2009 NMSC 7, ¶26. In Durham, the defendant was an attorney representing a client. See Durham, 2009 NMSC 7, ¶4. The defendant/attorney was alleged to have misused the legal process by serving subpoenas seeking employment and medical information in violation of a protective order. See Durham, 2009 NMSC 7, ¶5.

The defendant-attorney in Durham argued plaintiffs failed to state a claim because the defendant-attorney did not initiate a judicial proceeding, as the subpoenas were served in arbitration.See Durham, 2009 NMSC 7, ¶1. The Supreme Court rejected the defendant-attorney’s argument, stating: “[o]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.”Durham, 2009 NMSC 7, ¶26.

In short, while the litigation privilege immunizes litigants and their attorneys from most tort liability, a claim malicious abuse of process appears to be excepted from the privilege.


[1]          See also Isobe v. Sakatani, 127 Haw. 368, 385 (Haw. Ct. App. 2012)(“the litigation privilege does not apply to claims of malicious prosecution and fraud.”) (emphasis in original); Meadow Springs Recovery, LLC v. Wofford, 734 S.E.2d 100, 103 (Ga. App. 2012)(“[a]s a control on the misuse of absolute privilege, the law allows suits for ‘malicious use of civil process, malicious abuse of legal process, or malicious prosecution… .’”); Goldstein v. Serio, 496 So. 2d 412, 415 (La.App. 4 Cir. 1986) (“[a]s in the case of malicious prosecution, an abuse of process action cannot be defeated by the defense of absolute privilege. Abuse of process involves the misuse of a process already legally issued whereby a party attempts to obtain a result not proper under the law.”).