Communicating with the media via pleadings in Texas? Think again.
By Gina Rubel
The Texas Supreme Court decision in Landry’s v. Animal Legal Defense Fund, Tex., No. 19-0036, 5/21/21, holds that lawyers can be held liable for defamation when they send the media copies of legal documents they’ve drafted and signed that contain defamatory allegations, such as complaints or notices of intent to sue, or include defamatory allegations in published press releases. This applies to any law firm practicing law in Texas or filing suit in Texas.
According to the opinion, “An attorney who repeats his client’s allegations to the media or the public for publicity purposes is not acting in the unique, lawyerly capacity to which Texas law affords the strong protection of immunity. Although attorneys often make publicity statements for their clients, wrapping these statements in an absolute privilege would unreasonably shield attorneys from liability for defamatory statements that would be actionable if uttered by anyone other than an attorney. Attorneys who make such statements outside a judicial proceeding have many potential defenses to defamation liability, but the judicial-proceedings privilege and attorney immunity are not among them.”
We advise that clients guide the media to get copies of the pleadings once filed and when addressing allegations, always use language such as “alleges,” “contends,” “asserts,” or “claims.”
This ruling is reminiscent of Pennsylvania’s Bochetto v. Gibson, 2004 Pa. LEXIS 2466, 2004 WL 2358289, (Pa. Oct. 20, 2004) (Nigro, J.) in which the Court held that a lawyer can be held liable for defamation merely because he or she faxed a copy of a filed civil complaint to a reporter. In some states, such as California, the fair report privilege does cover a lawyer’s (or anyone else’s) press release about a complaint filed in court, so long as the press release is a “fair and true report” of the allegations in the complaint. But apparently not in Texas.