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April 01, 2012

Scruples: When Pled Allegations Hit the Newspapers

Normally, allegations in a pleading cannot support a vaiable defamation claim.

Michael Downey

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Did you read it?” Paradox asked.

“Read what?” Ethox queried.

“The news story on the Jay-Kaye litigation,” Paradox responded, placing a printout in front of Ethox.

Picking up the printout, Ethox scanned the headline. Paradox did not wait for a response. “They butchered Jay,” Paradox continued. “The story quotes Kaye’s amended complaint, which claims Jay stole from the partnership to support a drug habit. Jay is raging and wants us to file a defamation suit against Kaye and Kaye’s lawyer, Nemesis. Can you prepare the complaint?”

“Well,” Ethox equivocated, “this may not make the best defamation lawsuit.”

“What do you mean?” Paradox pressed. “Everything in the news story is false. It relates to Jay’s business. And Nemesis put it all in the amended complaint. So what was said will be easy to prove.”

“That’s just it,” Ethox replied. “Normally, allegations in a pleading cannot support a viable defamation claim.”

“You’re kidding!” Paradox snorted.

“Unfortunately, I am not,” Ethox answered. “Most states recognize a litigation privilege that provides an affirmative defense protecting lawyers, parties, and others involved in litigation from being sued for defamation for what is said in the litigation.”


“Well, Jay tells me he friended Kaye on Facebook when they were partners. Jay lets all his Facebook friends—including Kaye—access everything on his site. And Jay never blocked Kaye once they started fighting.”

“Then it was probably ethical for Kaye to access everything on Jay’s Facebook page and share it with his lawyers. They also could have made sure you included social media materials when you responded to discovery, but the informal discovery also works where Kaye’s access was authorized.”

“I had not thought of social media when preparing discovery responses.”

“I suspected so, but we can deal with that later,” Ethox continued. “Since Jay had previously authorized Kaye to see the site and never revoked that authorization, the authorization is probably still valid. So Kaye could access Jay’s Facebook page.”

“Well, that doesn’t explain access to Jay’s Twitter account. Jay keeps his tweets private. And he blocked Kaye when they started fighting. Jay even rejected a follower request from one of Kaye’s lawyers. But they still obtained access. Jay doesn’t know how, but he thinks it may have been a request from a supposed high school classmate. Jay’s class was pretty small, and he did not remember the sender, but he granted the request to avoid appearing rude.”

“Well, if Kaye’s lawyers did have someone send a misleading request to gain access, this would probably violate ABA Model Rules 4.1 and 8.4(c). Rule 4.1 prohibits a lawyer from making a false statement of material fact to a third person. Rule 8.4(c) prohibits a lawyer from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation. Authorities indicate these rules prohibit misleading friend requests.”

“We doubt a lawyer sent the request.”

“That may not matter,” Ethox explained. “Rule 8.4(a) prohibits lawyers from violating the rules themselves or through the actions of another. And Kaye’s lawyers would be responsible for non-
lawyer investigators and the like under Rule 5.3. So, if Kaye’s lawyers directed someone else to send the misleading request, they will likely still be responsible.”

“Is there any law on this?”

“Yes. Realize such requests are judged on a continuum. At one end, it is almost certainly ethical for a lawyer to send a request saying, ‘Hey, I am a lawyer and want your information to investigate you. Will you grant me access?’ At the other end, it is almost certainly unethical for a lawyer to use misrepresentations—like falsely claiming to be a classmate—to gain access to password-protected information.

“The middle is more gray and fact-dependent. For example, if Kaye’s lawyer—expecting Jay would recognize the lawyer and reject a request—asked someone Jay would not recognize to send the request, like a secretary or investigator, this may be OK if the secretary or investigator made no active misrepresentations. New York City Bar Association Opinion 2010-2 indicates this is probably OK. But other authorities—such as Philadelphia Bar Opinion 2009-02 and San Diego County Bar Association Legal Ethics Opinion 2011-2—indicate there is an unethical, material omission if the sender is requesting access only to gain information for a lawsuit but does not warn the recipient.

“That is not all,” Ethox continued. “Did Kaye’s lawyers know we represented Jay when the request was sent? If so, the request may violate Rule 4.2, which prohibits a lawyer (when representing a client) from communicating with another lawyer’s client about the subject matter of the representation. Applying California law, San Diego County Bar Association Ethics Opinion 2011-2 supports that, since such a request is to obtain information for a lawsuit, it will likely constitute a communication about the representation. This may provide further grounds for discipline or disqualification.”

“Well, I guess I have a lot to discuss with Kaye’s lawyers,” said Paradox, sounding relieved.

“Absolutely. Now, let’s talk about how to handle those deposition questions.”


Michael Downey

The author is with Armstrong Teasdale, LLP, St. Louis, and teaches legal ethics at Washington University School of Law. Please send feedback or questions for future columns to [email protected].