Application of Judicial-Proceedings Privilege
The Texas Supreme Court rejected this analysis, noting that the judicial-proceedings privilege and attorney immunity are “independent [defenses] serving independent purposes.” Turning first to the judicial-proceedings privilege, the supreme court explained that the privilege “facilitates the administration of justice by promoting ‘full and free disclosure of information . . . by participants in judicial proceedings’” and reducing the risk of retaliatory lawsuits. Accordingly, the privilege is absolute and protects “any statement made by the judge, juror, counsel, parties or witnesses” during any part of the litigation, such as “statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case.”
The high court also stated that while the privilege could extend to pre-suit communications that relate to a proceeding that is contemplated in good faith, its protections only encompassed communications preparatory to the lawsuit. The court further clarified that “[t]he statement itself must bear ‘some relation to a proceeding,’” and that “[i]t is not enough that the statement’s subject matter bears such a relation.”
In analyzing whether the privilege applied to the ALDF’s pre-suit media statements, the supreme court distinguished between the notice of intent to sue, on the one hand, and the subsequent press release and social media posts on the other. It held that while the service of notice of intent to sue upon Landry’s was privileged because it was “necessary to set the judicial machinery in motion” and, thus, preparatory to the ALDF’s suit, the media statements did not enjoy the same privilege. By contrast, the court reasoned that the press release and social media posts were not made within a pending or contemplated judicial proceeding, were not directed toward any participants in a pending or proposed proceeding, and were not necessary to initiate the ALDF’s suit.
The court expressed concern that “[e]xtending the privilege to publicity statements about litigation would detach the privilege from its underlying justifications and allow parties who publicize defamatory allegations to ‘escape liability for [defamation] damages’ just because they ‘ha[ve] made similar charges in [their] court pleadings.’” Moreover, it observed that other defenses were available for attorneys engaging in publicity and analogized the circumstance to other privileged statements losing their privileged character when repeated “outside the protected context.”
In so holding, the Texas Supreme Court resolved a split among the state’s intermediate courts of appeal. It observed that the appeals courts that held the privilege covered pre-suit media statements found the disclosures to be equivalent to providing journalists with court pleadings and, thus, did “not amount to a publication outside of the judicial proceedings.” The appeals courts that declined to apply the privilege, however, concluded the privilege was waived once the same statements were made outside the protective confines of litigation. The high court further observed that its view was in accord with the majority, as “[t]he widely adopted view in other American jurisdictions is that neither the judicial-proceedings privilege nor attorney immunity protects attorneys who publicize to the media or others unconnected with the proceeding allegations that would have been protected within the proceeding.”
The supreme court also rejected arguments that the state’s fair-notice privilege should be extended to attorneys. That statutory provision generally immunizes news media that provide “a fair, true, and impartial account of a judicial proceeding,” subject to certain enumerated exceptions. Noting that the legislature had not specifically included attorney statements to the media in the statute, the court declined to expand the doctrine.
Attorney Immunity Only Covers a Lawyer’s Legal Services
Turning next to the ALDF’s assertion of attorney immunity, the Texas Supreme Court first distinguished it from the judicial-proceedings privilege. It explained that attorney immunity is a “comprehensive affirmative defense protecting attorneys from liability to non-clients” that generally applies to an attorney’s provision of legal services to his or her client—specifically, those actions that use a lawyer’s “office, training, skill, and authority.” According to the court, attorney immunity is broader than the judicial-proceedings privilege in that it applies to more than just an attorney’s statements and extends to legal actions taken on behalf of a client, to ensure zealous advocacy.
The high court declined to apply attorney immunity to either the ALDF’s press release or social media posts because those activities did not involve the practice of law or require legal skill or authority but, rather, could be done by anyone. It further observed that extending attorney immunity in this way would essentially erode the judicial-proceedings privilege.
For that reason, the supreme court remanded the case to the court of appeals to determine if the plaintiffs had met their burden to establish a prima facie case of defamation.
Lawyers Lack Carte Blanche License to Defame
Though there is “always the opportunity for the Texas legislature to respond, lawyers will need to be more aware when they are speaking to the media on behalf of clients,” cautions Sara A. Brown, Dallas, TX, vice-chair of the Litigation Section’s Business Torts & Unfair Competition Committee. “Litigators cannot make accusations about an opposing party with impunity,” she adds. “If you are publicizing your client’s case, you do not have the carte blanche immunity afforded you by the judicial proceedings privilege,” agrees David B. Seserman, Denver, CO, cochair of the Section’s Solo & Small Firm Committee.
The court’s ruling was not opaque, Ashley J. Heilprin, New Orleans, LA, cochair of the Section’s Pretrial Practice & Discovery Committee, offers. “The ruling makes clear that conduct that is not in furtherance of our duties as lawyers or the judicial process will not fall under the attorney immunity doctrine and judicial-proceedings privilege,” she explains. The court “patently distinguishes a pre-suit notice that was in connection with the proceedings from the publicity that was not,” Heilprin states.
Section Leaders Recommend Exercising Care When Interacting with the Media
Landry’s was “a strong statement by the supreme court that cases should be tried in the courtroom and not in the media,” Brown states. But the ruling does not mean attorneys need to silence themselves altogether or refrain from utilizing public relations professionals. “Media and social media can be part of an effective litigation strategy,” Heilprin acknowledges. Although she has not observed attorneys using media channels to publicize commercial litigation, Heilprin says she does see them doing so within the context of public interest and civil rights work. “Lawyers are successfully leveraging the fact that a case is a matter of public concern,” she states.
Section leaders warn that attorneys must be conscientious when interacting with the press and posting statements online. “Commenting to a reporter on the 5 p.m. news is different than posting on Facebook. If your posting allows comments, you may be creating an opportunity for other people to post additional defamatory material,” Heilprin warns.
The attorney-publicist also runs the risk of tainting a jury pool, Seserman adds. “Publicity may be of a direct benefit to a client where the media places pressure on the other side to resolve the case, but it may also have the potential to impact the analysis of the trier of fact,” he explains. “As attorneys, we hold ourselves up to a certain standard of conduct. We are of a trusted profession and if we take actions outside that profession, we are not immune from claims of defamation,” Seserman concludes.