Absolute Litigation Privilege: What Illinois Litigators Can (and Can’t) Say

In Illinois, the absolute litigation privilege provides litigators with broad protection for statements made in the course of representing clients. But that protection has limits every trial lawyer should understand.

At its core, the doctrine shields attorneys from civil liability for allegedly defamatory statements made in connection with a judicial proceeding, so long as those communications are pertinent to the case. Illinois courts describe the privilege as “absolute” because it applies even if the plaintiff claims the lawyer acted with malice or used harsh language. The goal is to allow lawyers to advocate vigorously, communicate candidly with courts and clients, and develop the record without constantly looking over their shoulder for defamation suits.

For Illinois civil litigators, understanding absolute litigation privilege is a practical risk management skill. The privilege can apply to statements in pleadings, motions, discovery letters, expert reports, demand letters, and oral argument, as well as certain pre-suit communications tied to anticipated litigation. When used properly, it creates space for honest assessment of facts and parties without fear that every sharp sentence will trigger a defamation claim. But it is not a blanket license to say anything, to anyone.

The protection turns on whether the communication is connected to a judicial proceeding and reasonably related to the issues in dispute. Knowing where those lines are drawn is essential to balancing zealous advocacy with professional responsibility and malpractice exposure.

Qualizza v. Freeman: How Courts Apply the Absolute Litigation Privilege

In recent decisions, Illinois courts have confirmed just how far the privilege extends. In Qualizza v. Freeman, the First District affirmed dismissal of counterclaims against two lawyers and their firm based on allegedly defamatory communications they made to people with an interest in ongoing litigation. The case arose from a dispute where the attorneys communicated concerns about fraud and misrepresentation to third parties connected to the lawsuit, and the recipients responded with defamation and related tort claims against the lawyers.

The appellate court held that the absolute litigation privilege barred those claims. It emphasized that the privilege applies to communications made before, during, and after litigation, and that it extends not only to statements filed in pleadings but also to other attorney conduct performed in furtherance of representation.

Furthermore, the court explained that “The touchstone is the pertinency requirement. A communication is pertinent if it relates to the litigation and is in furtherance of representation.” That requirement is intentionally applied loosely, and any doubt is resolved in favor of finding a statement pertinent. The court also made clear that communications with certain third parties (i.e., clients, co-counsel, opposing counsel, experts, and insurers with a genuine stake in the dispute) can fall within the privilege, as long as the message remains tied to the claims and defenses in the case.

Absolute Litigation Privilege and Other Civil Claims

Traditionally, absolute litigation privilege was primarily discussed in the context of defamation claims. More recently, however, Illinois decisions have applied the privilege to a broader range of litigation-related conduct. As surveyed in recent commentary, courts have recognized litigation privilege as a defense to claims such as interference with contract and other non-defamation torts, where the alleged wrongful conduct consists of statements or actions taken as part of advocacy in a pending or clearly anticipated case. In some instances, courts have also treated complaints to insurers or other entities as privileged when they are genuinely tied to ongoing litigation strategy or the protection of a client’s legal interests.

This expansion reflects a strong policy choice. Illinois wants lawyers to be able to speak and write freely when communicating about lawsuits, even when the allegations are sharp, uncomfortable, or disputed. At the same time, the privilege is not a license to weaponize accusations outside the litigation context. The communication must still relate to existing or proposed litigation and be directed to a person or entity with a legitimate connection to that dispute.

When lawyers move beyond that lane, the privilege may no longer apply, and traditional defamation and tort exposure returns. For instance, the privilege may not apply when an attorney shares accusations with the general public, unrelated business partners, or social media audiences. Attorneys who treat the privilege as a shield for genuine case-related advocacy, rather than a sword for public relations battles, are far better positioned to avoid unwanted claims.

Practical Guidelines and Risk Management for Litigation Communications

For Illinois firms, the practical question is what all of this means for everyday litigation communications. As a starting point, emails, status letters, evaluation reports, and settlement discussions with clients, co-counsel, opposing counsel, experts, and insurers are generally more likely to be protected. This pertains to communications related to case strategy, facts, or risk that are reasonably tied to the litigation. Internal law firm communications about a pending case usually fall within the same zone.

Risk increases when statements stray into personal attacks that serve no real litigation purpose, or when lawyers share case-related accusations with people who have no real stake in the outcome. In close calls, it is worth asking: Does this communication move the case forward, or is it mainly venting frustration?

From a risk management standpoint, absolute litigation privilege should be treated as a safety net, not a strategy. Our team encourages Illinois lawyers to keep their written work product focused on facts, analysis, and legitimate advocacy needs. When questions arise, ISBA Mutual’s professional liability coverage and risk management resources can help firms evaluate difficult situations, respond to threatened claims, and understand how doctrines like absolute privilege interact with their broader exposure. Used wisely, the privilege allows lawyers to advocate forcefully while still protecting their reputation, clients, and coverage.

To find the best coverage for your firm, contact the professional liability team at ISBA Mutual Insurance Company.