Even with this ruling, Texas lawyers should continue publicizing their lawsuits, provided they understand how to avoid defaming adversaries when they do so.
We’re taking a trip to the Lone Star State. Austin to be exact, to check in with the Texas Supreme Court, which is located literally in the shadow of the Texas State Capitol.
But before we grab our Stetsons or Resistols and make our way there, some background is in order.
Since 2004, lawyers in my home state, Pennsylvania, have been on notice from the Pennsylvania Supreme Court through its decision in Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004) that as a matter of law they can be liable for defamation when they send to the media copies of legal documents they’ve prepared and signed containing defamatory allegations, such as complaints and demand letters.
(In Bochetto, Kevin Gibson faxed to a local reporter a malpractice complaint he filed against another lawyer, George Bochetto, on behalf of a client.)
That’s why I always advise the Pennsylvania-based lawyers I work with not to send complaints and similar legal documents they’ve signed containing defamatory allegations to the media.
Instead, I recommend, when possible, they provide reporters with the docket number of a particular lawsuit and tell the reporters to grab a copy of the desired filing themselves.
When I speak with lawyers outside of Pennsylvania about ethically, strategically, and proactively engaging the Court of Public Opinion, I point to Bochetto v. Gibson and say something along the lines of:
“While it is unlikely your own state supreme court has chimed in on this issue, there’s a good chance a trial court in your state has, and they likely came out on the same side as the Pennsylvania Supreme Court. Even if no court in your state has ruled on the issue, do not tempt fate. Do not send copies of court filings you’ve signed containing defamatory allegations to the media.”
On a related point, I also tell lawyers that they, their clients, and their public relations people need to be careful when including in press releases allegations they’ve made in litigation regarding another party or other parties. If not framed properly, including those allegations in a press release could lead to a defamation claim.
Reported appellate decisions about either of these issues are rare. That’s why we’re heading to Austin to check in with the Texas Supreme Court.
A few weeks ago (in mid-May 2021), the court decided Landry’s, Inc., et al., v. Animal Legal Defense Fund et al., No. 19–0036. (A PDF of the decision is here.)
In Landry’s, the Texas Supreme Court addressed both of these issues. It held that under Texas law lawyers can be liable for defamation as a matter of law when they (i) send to the media copies of legal documents they’ve drafted and signed that contain defamatory allegations, or (ii) include defamatory allegations in published press releases.
The ABA Journal provided a high-level description of the case and the decision here.
The case arose out of the Animal Legal Defense Fund publishing this press release on its website about serving on Landry’s a notice of intent to sue for violations of the Endangered Species Act. The alleged violations were based on Landry’s treatment of four white tigers exhibited at the company’s aquarium and restaurant in downtown Houston. The ALDF (apparently with help from one of its lawyers) then sent the press release and the notice of intent to various media outlets.
The Texas Supreme Court (like the Pennsylvania Supreme Court did and most other courts that have ruled on this issue have done) held that the allegedly defamatory allegations were not protected by the judicial proceedings privilege to defamation when they were sent to the media as part of the notice of intent to sue or when they appeared in a press release.
The court held the judicial proceedings privilege does not apply in situations where allegations are repeated for publicity purposes “outside the protected context within which the statements originally were made” — legal documents filed in court or created in connection with legal disputes.
Also, the court noted that while “press statements often serve an important function for the party issuing them and for the public, . . . they are in no way part of a judicial proceeding or preparatory to one in any formal sense,” nor would bringing them under the privilege serve the interests of the privilege which is to “facilitate open and vigorous litigation of matters inside the courtroom.”
Though you can read the 21-page decision via the link I included to it above, here are three points you should take away from the decision and this blog post:
1. While this decision could be problematic for lawyers who seek to proactively publicize the filing of their cases, the court’s decision was on a motion to dismiss. The ALDF lawyer — and other lawyers who find themselves in a similar position — will have a number of fact-based defenses available as the litigation proceeds and the facts are developed.
2. Ensure your press releases MAKE CLEAR through language — such as “as we allege,” “according to the complaint,” and “the complaint alleges” — that the allegations you are referencing in your press releases ARE ALLEGATIONS. If you do not, you may open yourself up to a defamation claim.
The Texas Supreme Court’s opinion does not walk through the ALDF’s statements Landry’s alleged were defamatory, but the Texas Court of Appeals opinion that was partly overruled by the Supreme Court’s decision did. You can read that decision here. The ALDF could have done a better job writing its press release in a way that stressed it was discussing allegations, which would have possibly helped it steer clear of a defamation claim.
3. Think long and hard before emailing a reporter a copy of a complaint, demand letter, etc., you signed and filed/served. If somehow it becomes known to opposing counsel that you’ve done so, in most jurisdictions the ensuing defamation lawsuit filed against you will likely survive the inevitable motion to dismiss you file arguing you are protected by the judicial proceedings privilege to defamation.
I believe lawyers — plaintiffs’ and defense counsel alike — have a duty to their clients to ethically engage the Court of Public Opinion on their clients’ behalf when their clients’ legal interests would be served by doing so.
This recent Texas Supreme Court decision does not change my belief — and it shouldn’t change yours if you share that belief.
It is simply a reminder to make sure you dot your defamation-avoidance “i”s (and cross your ethical-compliance “t”s) before engaging the Court of Public Opinion.
Bottom line: Even with this ruling, Texas lawyers should continue publicizing their lawsuits, provided they understand how to avoid defaming adversaries when they do so.
Wayne Pollock, a former Am Law 50 senior litigation associate, is the founder of Copo Strategies, a legal services and communications firm, and the Law Firm Editorial Service, a content strategy and ghostwriting service for lawyers and their law firms. Copo Strategies helps lawyers and their clients ethically, strategically, and proactively engage the Court of Public Opinion in order to favorably resolve those clients’ legal disputes.