Defamation in Legal Submissions: When Can a Lawyer Be Sued?

Imagine: you own a flat in Pau, and your tenant sues you for works that he claims were not carried out. In his submissions, his lawyer writes that you are a "slum landlord" and that you "exploit people's misery". You are furious, you want to file a complaint for defamation. But can you do so? The answer is nuanced, and the Court of Cassation has just clarified it on 28 September 2022. This decision, rendered in a property dispute, directly concerns all players in the sector: owners, tenants, developers, and of course lawyers. Because it draws a line: what is said in court proceedings benefits from broad immunity, unless it goes beyond the scope of the trial. Explanations.

Specifically, Article 41 of the Law of 29 July 1881 provides that speeches and writings produced before the courts cannot give rise to an action for defamation, unless they are unrelated to the case. Behind this legal jargon lies an essential rule: freedom of defence. A lawyer must be able to criticise an opponent, call them "dishonest" or "negligent", without fear of being dragged before the criminal court every time. But this immunity has limits: if the lawyer, in his written submissions, attacks the person of his opponent for facts totally unrelated to the dispute, then defamation can be established. This is exactly what the Court of Cassation recalled in this case.

Why is this decision important for you, an owner in Saint-Jean-de-Luz or a developer in Pau? Because it sets a clear framework: you cannot sue a lawyer for defamation who calls you a "liar" in the context of a trial over a sale contract, because his statements are related to the proceedings. On the other hand, if he invents personal facts unrelated to the case, the door is open. But be careful, the line is sometimes thin, and the judges assess on a case-by-case basis. Let's dissect this decision.

The facts: a story like many others

The case begins with a property sale in Pau. A developer sells units off-plan (VEFA) to purchasers. But defects and unfinished work appear. The purchasers sue the developer and the notary. In their submissions, the purchasers' lawyers write that the notary "should have submitted the sales to the VEFA regime" and that he "should have advised a sale under this regime". The notary feels defamed: according to him, these statements imply that he committed a serious professional fault. He files a complaint for defamation against the lawyers and the purchasers.

The criminal court of Pau is seized. The purchasers' lawyers invoke the immunity of Article 41 of the 1881 Law: their statements are within the scope of their clients' defence, so they are covered. The court rules in their favour and dismisses the notary's claim. The notary appeals. The Pau Court of Appeal confirms: the incriminated passages are directly related to the subject matter of the dispute, namely the notary's liability in drafting the deeds. The notary appeals to the Court of Cassation.

The Court of Cassation, in its judgment of 28 September 2022 (No. 20-16.139), dismisses the appeal. It recalls that "it is only if they are unrelated to the judicial proceedings that passages in submissions can justify an award of damages because of their allegedly defamatory nature". In other words, as long as the statements are linked to the judicial debate, they are protected. The notary will not obtain damages for defamation.

The reasoning of the court — dissected

The core of the reasoning involves two steps. First, the Court recalls the principle: Article 41 of the Law of 29 July 1881 provides that "speeches delivered or writings produced before the courts" cannot give rise to an action for defamation, unless the statements are unrelated to the case. This text protects the freedom of speech of lawyers and parties, essential to the administration of justice. Without this immunity, every speech or written submission could be criminally attacked, which would paralyse trials.

Then, the Court examines whether the incriminated passages are "unrelated to the proceedings". Here, the submissions criticised the notary for not having advised the VEFA regime. However, the dispute precisely concerned the nature of the sales and the notary's obligations. The statements are therefore directly linked to the subject matter of the trial. It does not matter that they are harsh or inaccurate: they are covered by immunity. The Court specifies that the assessment is made in concreto, i.e., in light of the context of each proceeding. This is not an absolute immunity, but a functional immunity.

This decision is part of consistent case law. The Court of Cassation is careful not to extend the notion of statements "unrelated to the case". For example, a lawyer who calls his opponent a "thief" in the context of a theft dispute would be covered. On the other hand, if he accuses him of child abuse in the context of a commercial dispute, then the statements are unrelated. The boundary is therefore the link with the judicial debate. A question arises: is this immunity too broad? Some believe it allows lawyers to say anything without risk. But the Court of Cassation recalls that other avenues exist, such as disciplinary action or civil liability for abuse of process.

What this changes for you — concretely

For a landlord in Saint-Jean-de-Luz who is called an "unworthy landlord" in the context of a dispute over an unhealthy dwelling: you will not be able to sue the tenant's lawyer for defamation, because the statements are related to the proceedings. On the other hand, if the lawyer writes that you have been convicted of tax fraud in another case, unrelated to the dwelling, then you could take action. Example: a defamation procedure can cost between €3,000 and €10,000 in legal fees, not to mention court costs. If you lose, you may be ordered to pay the other party's costs. It is therefore better to be certain that the statements are unrelated to the proceedings before bringing an action.

For an off-plan purchaser in Pau: if the seller's lawyer calls you a "bad payer" in his submissions on the payment of the price, these statements are covered. You cannot sue for defamation. This does not prevent you from challenging the merits of the case, but the insult will not be criminally sanctioned. In practice, immunity protects freedom of defence, but it can be frustrating for the person targeted. If you believe that the statements go too far, you can always refer the matter to the President of the Bar Association for disciplinary sanction, or claim damages for abuse of process if the lawyer acted maliciously.

For a notary or property professional: this decision is reassuring insofar as it recalls that professional criticisms made in the context of a trial are not defamatory. But be careful, if you are sued for statements made outside the proceedings (for example, in a letter to a client, or on social media), immunity does not apply. You can then be convicted of defamation. A notary in Saint-Jean-de-Luz, for example, could be sued if he writes in a letter that a colleague is "incompetent" without any link to a procedure.

Four tips to avoid this type of dispute

• Do not confuse immunity with impunity: even if protected, a lawyer remains subject to professional ethics. If you are a lawyer, avoid personal attacks not necessary for your client's defence. An overly aggressive statement may be disciplined.
• If you are a party to a trial and statements shock you: before filing a complaint, ask your lawyer whether the statements are related to the proceedings. If they are, you are wasting your time and money. Focus on the merits of the case.
• Keep a written record: if you think that statements are unrelated to the case, keep the submissions and request a bailiff's report. This will be useful if you bring an action.
• Prefer the civil route: instead of a criminal action for defamation (complex and risky), you can claim damages on the basis of Article 1240 of the Civil Code (liability for fault). But you will need to prove specific harm.

Further reading: related case law and developments

The Court of Cassation has already had occasion to clarify this immunity. In a judgment of 10 July 2013 (No. 12-85.137), it held that statements made in a criminal complaint (and not in submissions) were also covered by immunity, unless they are unrelated to the subject of the complaint. More recently, in a judgment of 9 March 2022 (No. 21-80.359), the Court recalled that immunity applies even if the statements are inaccurate or false, as long as they are related to the dispute. The trend is therefore towards broad protection of freedom of defence. This means that attempts to sue lawyers for defamation in the context of proceedings are unlikely to succeed, except in extreme cases where the lawyer attacks the private life of his opponent without any link to the debate. For the future, we can expect judges to continue to interpret strictly the notion of statements "unrelated to the proceedings", so as not to hinder the right to a fair trial.

Checklist before taking action

FAQ: practical questions

1. Can I sue a lawyer who called me a "liar" in his submissions? No, if the statements are related to the subject of the trial. The immunity under Article 41 of the 1881 Law applies.
2. What if the lawyer accuses me of facts totally unrelated to the dispute (e.g., domestic violence in a neighbour dispute)? In that case, you can take action for defamation, because the statements are unrelated to the case. Consult a lawyer quickly, as the limitation period is 3 months.
3. What is the time limit for filing a defamation complaint? 3 months from the publication of the statements (date of notification of the submissions). After this period, the action is time-barred.
4. What is the cost of a defamation action? Between €2,000 and €8,000 in legal fees, plus court costs (bailiff, expert reports). If you lose, you may be ordered to pay costs and damages.
5. Is there an alternative to defamation? Yes, you can refer the matter to the President of the Bar Association for a disciplinary complaint against the lawyer, without going through the criminal court. The procedure is free and can result in a warning or suspension.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →