At least at the start of a case, yes. The Appeals Court held that a city solicitor who emailed an investigation report containing two police captains’ unredacted discrimination charges and personal contact information could not get the claims against him dismissed on the basis of the litigation privilege or common law immunity. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
Two women who are captains in a city police department alleged gender discrimination, including duties shifted to lower ranked male officers, pay differences and unequal recognition. They reported it to the city’s human resources department in September 2022, and the city hired an outside investigator. In April 2023, before the report was done, both captains filed charges with the Massachusetts Commission Against Discrimination (MCAD). The investigator had assured them their recorded interviews would not be released unless legally required and that their lawyers would be told first. According to the complaint, the city solicitor then emailed the final report to the captains, their lawyers and the president of the officers’ union, with every exhibit, interview recordings, video of Zoom interviews the captains did not know were being recorded, their unredacted MCAD charges, and their home addresses, personal phone numbers and email addresses, none of it password protected.
What the court decided
The captains sued the city and several officials. Against the solicitor, they claimed defamation and interference with business or contractual relations. A Superior Court judge denied his motion to dismiss those claims, and the Appeals Court affirmed in O’Hara v. Revere, No. 24-P-1105 (Mass. App. Ct. July 11, 2025) (Rule 23.0 decision). At this stage, the court had to accept the facts in the complaint as true.
Litigation privilege. Lawyers have an absolute privilege for statements made in, or in communications leading up to, a judicial proceeding, if the statements relate to it. Sriberg v. Raymond, 370 Mass. 105 (1976). For communications before a case is filed, the proceeding must be contemplated in good faith and under serious consideration, and the privilege is not a shield for defamation when no suit is seriously considered. Sriberg, 370 Mass. 105; Smith v. Suburban Restaurants, Inc., 374 Mass. 528 (1978). Nothing in the complaint showed that the solicitor’s email was part of negotiations, stated the city’s legal position, or related to the MCAD charges or this lawsuit. So the privilege did not apply on the pleadings.
Common law immunity. A public official who uses judgment and discretion is not liable for errors in an official decision if the official acted in good faith, without malice and without corruption. Nelson v. Salem State College, 446 Mass. 525 (2006). The captains alleged the solicitor acted out of retaliatory animus and spite. At this early stage, that was enough to allege he did not act in good faith, so immunity did not end the case.
The court did not decide whether the solicitor will win in the end. A separate argument for a conditional privilege was not before it. The decision means only that the claims go forward.
What this means for you
If you file a discrimination complaint at work, you are trusting your employer and its investigators with sensitive information. This decision shows that a government lawyer does not get automatic protection for spreading that information when, on the facts alleged, the release had no connection to any lawsuit or MCAD case. Calling yourself the city’s lawyer is not enough. The privilege depends on what the communication was for.
It also shows how much the words in a complaint matter at the start. The captains described specific facts: who received the email, what was attached, what promises had been made, and why they said it was done. Those details let the case survive a motion to dismiss.
Keep in mind the limits. This is a ruling on the pleadings, based on allegations not yet proven. The officials may still raise other defenses later.
What to do now
- When you take part in a workplace investigation, ask in writing who will see your interview, any recordings and your personal information.
- Save every written assurance you receive about confidentiality.
- If your charge or personal details are shared beyond those who need them, keep the email, the attachments and the list of recipients.
- Write down how the disclosure affected you at work, including any new retaliation.
- Talk to a lawyer promptly. Retaliation claims and tort claims have their own deadlines.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
