Speaking to the Press without the Protection of Privilege
I’m always one to advocate for talking with the media so long as it is in your client’s best interest and within ethical guidelines. Of course, it is not always possible and not always advisable. In Tennessee, we have the litigation privilege shielding attorneys from liability for libel or defamation claims arising out of “statements made in the course of judicial proceedings which are relevant and pertinent to the issues.”
A recent decision out of Texas caught my attention, however, as it is a cautionary tale and good reminder that you need to be all the more careful when the comments are not part of a judicial proceeding or in a pleading.
The legal and ethical protections that allow lawyers to advance their clients’ causes before judges and juries do not apply equally to statements they make before microphones and cameras. Not recognizing the difference can leave attorneys exposed to liability and leave their clients no better for their efforts.
Not recognizing the difference can leave attorneys exposed to liability and leave their clients no better for their efforts.
A decision issued just last year by the Texas Supreme Court involving Texas’s version of the litigation privilege held that an attorney’s efforts to publicize allegedly defamatory statements, including on social media and in press releases, are not shielded from liability under the privilege. “Statements to the media, by definition, are not made within a judicial proceeding,” the court said. It continued:
“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.”
While this opinion is not particularly surprising and the same rationale would likely apply in Tennessee, it is a good reminder for those balancing a client’s desire to have their attorney front and center in the press and the limits on those comments. This is not to advocate at all that attorneys should stay silent, but only to be aware of what you say and when. After all, advocating for your client effectively in the media can go far in advancing their case in the court of public opinion so long as it is done appropriately and ethically. Any such statements should be strategically made and carefully calibrated to avoid any risk of exposing the attorney and the party to even more costly and disruptive litigation.