Arizona Court of Appeals Division One held that (1) a communication that occurs preliminary to a judicial proceeding may be privileged against defamation claims when the defendant was “seriously considering” commencing litigation or had a good-faith basis to believe someone else was; and (2) Supreme Court Rule 48(l) does not bar abuse of judicial process claims involving a professional-discipline proceeding but the mere submission of a bar complaint that is dismissed without further action is not use of a judicial process for purposes of such a claim.

In the midst of a noise permit dispute concerning a resort and a homeowners’ association, an attorney, purporting to represent a single homeowner, accused the attorney representing the association of negligence and requested that the association’s attorney cease and desist his advocacy.  The association’s attorney learned the single homeowner’s attorney actually represented the resort itself and subsequently called the State Bar’s ethics hotline for advice.  The State Bar advised that the resort’s attorney may be in violation of the ethical rules.  The association’s attorney wrote a letter to the resort’s attorney, accusing him of misrepresentation and ethical violations.

After a series of legal maneuvers by both attorneys, the association’s attorney sent all of his communications with the resort’s attorney, including his concerns regarding ethical violations, to the homeowners.  He also filed a bar charge against the resort’s attorney.  The resort’s attorney then filed suit against the association’s attorney for, among other things, defamation for the comments made in the letters, communication to homeowners, and bar charge; and abuse of process for filing the bar charge.

The superior court granted summary judgment on the defamation count in favor of the association’s attorney, dismissed the abuse-of-process claim on the pleadings, and awarded the association’s attorney fees under A.R.S. § 12-349, reasoning that the abuse-of-process claims were groundless.  The resort’s attorney appealed.

The Court of Appeals affirmed the dismissal of the defamation claim, holding that the common law litigation privilege, codified in Rule 48(l), protects defamatory statements made preliminary to a quasi-judicial proceeding, such as a disciplinary proceeding, when the statements are related to the subject of the proceeding and are made with a good faith belief or serious consideration of litigation.

The Court also affirmed the dismissal of the abuse-of-process claim but disagreed with the superior court’s reasoning.  First, because claims for abuse of process existed at statehood, they are protected by the Arizona Constitution’s anti-abrogation clause, even where public policy favors reporting unethical behavior.  Second, although a party’s statements made in anticipation of a professional disciplinary proceeding are insulated from a defamation action based on the content of a communication, the act of filing an improper bar charge is not privileged or protected from an abuse-of-process claim.  As such, an action within a disciplinary proceeding may implicate an action for improper litigation conduct.  However, because the mere filing of a bar charge is not “use” of a judicial process, an improper filing cannot form the basis of an abuse-of-process claim where the charge is dismissed before a proceeding.

Judge McMurdie authored the opinion; Judges Perkins and Thumma concurred and Judge Thumma wrote a separate concurrence.