good morning peter halloran for the plaintiff of poland's by this appeal this court is presented with the opportunity to either change or hold the law regarding an attorney's privilege applies without question but that's not the law to be privileged the defamatory statements have to have some connection to the action in have to have engaged in a fraudulent skee specifically they allege that only did they have pooled evidence that the plaintiff has a pattern of using deceptive and misleading realestate contracts without  those allegations what the defendants are choosing the plaintiff have happened is a pattern of seeking to enforce its real estate contracts in other words my clients have gone to court to enforce their contractual right litigation and in the defamation context missile without prejudice or dismissal with prejudice or a dismissal of the underlying case doesn't unrelated about the damage has already been done by the fact of the actual filing of the pleading that in this case they didn't file to try to with vance those claims because if they did they would have actually made good quality fraud claimed they used it so that they could tell to third parties that they have this pending fr the per se context of a defamation suit the law says these are special kinds of clients you don't even have to prove special damages because the type of damage is so severe so what an attorney is able to do by doing an end around of actually alleging something towards bringing about the actual further and some of the litigation is be able to make these statements tell them to third parties and then even not find any and in my research but there certainly were cases which we cited in which the defense cited where allegations in an underlying suit ended up making going forward as a defamation claim they just weren't necessarily fraud in the underlying losses but other statements that were made factual statements that were made in other lawsuits that have been allowed to go forward in defamation quite estate contract dispute and what they're claiming is that the defendant plaintiffs in this case have a an pattern of using real estate contracts so from that perspective but the test itself goes one step further than that and that is that it has to bear on the underlying mitigation but it also has to be a change for the purpose or made for the purpose of actually  well not in every case it and it depends what it does is it doesn't knock out the death penalty defamation claim of an issue it doesn't knock it out as if there is no  alleged scheme if they had no basis to make a claim whatsoever then the front claim i'm sorry the defamation claim should be allowed to go forward and it's i know it's it sounds homes or were they really just using it so that they could go out to third parties and say we see these guys yeah we know these guys are bad guys because we've sued these guys for fraud and they have a pattern of doing this so that's why we've done this now  the well it i guess it's a combination of the two because the factual misstatement is the is the underlying fraud claim that doesn't have a basis because the other statement that gets made to a third party we have this claim pending isn't false but in there is no basis for the underlying plane pending then they they have to go hand in hand worth it is if the underlying in there is no basis for the underline claim of fraud that's why in this particular context if that claim was not made for the purposes of actually advancing the  and then there should be should be able to go forward in the under with the underlying defamation claim because there is otherwise they do it in such a way that they do because of this they've insulated themselves absolutely completely blanket insulation from any kind of defamation claim that it would actually be well absolutely in this context means that it does say absolute privilege but with qualifications because it still has to meet those the four craig theory have to be an absolute privilege and the courts have even said for example in defending versus myself us they said it must be made to actually achieve the i objects of the litigation if they're not to reason really relate to the issues that are the absolute privilege no longer available and a charge of malice enters into the consideration if a qualified privilege would in their defense it was in a town or claim and it was in the context of using it as two other it not that they that we gauged in fraud in this particular contract there was not an allegation that there's these other were they at this pattern doing in these other cases with no basis whatsoever to make that allegation and what it ends up doing is it becomes the defamation of my know per se defamation of my client based on and our nation that now given all the circumstances my client has no way of getting compensation for that nothing that they can do about it even know it has so that the defendants could tout that they had these claims for fraud so we contend that the privilege should not apply unless this court agrees that there is blanket immunity rather than qualified or no doesn't do anything relating to assess any of the allegations that are required for a fraud claim and includes these completely out of nowhere around the sheets about termites shows they didn't do it so that they could actually against the purpose of the  advance in good faith the claims by making good faith claims claims that actually have any basis in the fact in law and the reason i'm asking them if they are the for the my earlier question i mean if you lose you haven't met their criteria to advance some other purpose outside of the litigation so in this case to tell to their parties that we have these claims and we have made these fraud claims when they don't have an actual basis to make the fraud story be requiring a to be made to outside of the scope of the litigation but the problem with which i get back to is if what they're saying is we have this claim pending then they haven't said something that falls outside we've taken the privilege and let it go one step too far and in this particular context when we're using it in a defamation context especially in the person a different nation context it leaves the party who has this happen to him without me in any way and of protecting yourself are you trying to change i think we're trying to actually enforce the law by giving some meaning in this particular case to achieve the objects of the this is an absolute privilege good faith is not a test that applies to whether this absolute litigation privilege applies as long as it bears some relationship to the litigation and it's made in the courts feel that cation concerned with relates to a fraudulent pattern of activity the problem with the question over the intent to the rational is that we were knocked out of the pleading stage based solely on the existence of the immunity to the point where we never got any further into the case to be able to allegedly think to be able to go defamation per se it's you can't under the bell you can't do the bad statements simply by assessing some attorney's fees there is no damages the goes the next step for him and that's why in the context of defamation they're saying public service and misfit administration of justice require immunity while submit to you that the administration of justice here to someone who's been defamed to person a is you have to at least give them the opportunity of going forward with their lawsuit for defamation without applying sort of this blanket immunity wiping out the question of what what facts do you have where do you go with this to say that it was made to a sheep the objects of the that gets done in the course of those proceedings not knocked out at the pleading stage on a motion to dismiss simply because they waited in unity we're not getting any of that that's yours i was asking about are you trying to change the law because  intent to further the litigation apparently you do not know the finder of fact i did make those allegations but i don't get to unfortunately i don't get to just make a judgment on that i still get to go forward with my playing and go to the fi the underlying litigation  i i suppose it is possible that the underlying would occasion has to be resolved the problem is you get a statement that's made in the underlying and the action in the statement is made outside of court and now all of a sudden you have a statue  is it it's a it's a factual we were making just right any other kind of misrepresentation came clase claim you have to make claims of intent you prove intent by circumstantial evidence  not necessarily because it goes in it goes in tandem with the question of talents in the third parties and what was the purpose for using it in the other  never i don't know about never because they could be a judge could say under a two six one nine or eight to six fifteen motion that we will find as a matter of law in these particular allegations that you've made don't meet that the pleading the standard for that cause of action that's what this judge did this is just sad immunity applies so you don't have a claim whatsoever and it  we don't think that there are any facts it was there is immunity they can say whatever th state because counsel who is the defendant in this case wasn't comfortable continuing to represent his client in that case based on the existence of this case so