The Supreme Court of Texas has put attorneys in the crosshairs for making statements aimed at publicizing clients’ cases rather than advancing the claims solely through judicial proceedings. Despite the high court’s ruling, Texas lawyers still have plenty of options for maintaining their public profiles without commenting on the cases they are handling.
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In addition to being top of mind for litigators and public relations professionals such as myself, the Supreme Court’s decision provides an important warning that lawyers’ public comments do not enjoy the protection of immunity that many people presumed was there all along.
Tigers and Aquariums and Lawsuits, Oh My!
The high court’s unanimous ruling stems from a defamation lawsuit filed by the Houston-based restaurant and hospitality company Landry’s Inc. against the California-based Animal Legal Defense Fund (ALDF).
In the fall of 2016, ALDF sent a notice letter to Landry’s about the group’s intention to sue the company based on alleged violations of the Endangered Species Act. The letter stemmed from the purported treatment of a group of tigers at the Downtown Aquarium in Houston, which is operated by a Landry’s subsidiary.
In-house and outside counsel for ALDF issued a related press release the same day the notice letter was sent to Landry’s. The group further publicized the letter in social media posts.
After the case garnered media attention in Texas and elsewhere, Landry’s filed defamation claims against ALDF in state district court in Houston. The trial court sided with ALDF and dismissed Landry’s claims before ordering the company to pay $450,000 in sanctions plus attorneys’ fees.
Landry’s responded with an appeal to the Fourteenth Court of Appeals in Houston. The appeals court found that the trial court abused its discretion with the amount of sanctions levied against Landry’s. Still, it upheld the lawsuit’s dismissal after finding ALDF was protected by the judicial-proceedings privilege that immunizes defendants from liability for challenged statements. Landry’s responded by appealing to the Texas Supreme Court.
Court’s Reasoning for Lawyers’ Potential Liability
In its 21-page opinion, the Supreme Court rejected ALDF’s assertion that Landry’s claims should be barred by the judicial-proceedings privilege and attorney immunity. Although the ruling notes that “Texas law has been less clear on whether the judicial-proceedings privilege applies to statements to the media or the public,” the high court found that media statements “by definition, are not made within a judicial proceeding.”
“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,” the opinion states.
The Supreme Court also shot down ALDF’s attorney immunity defense after finding “There is nothing particular to ‘the office, professional training, skill and authority of attorney’ about sending out press releases or disseminating potentially defamatory allegations through the media.”
What Does Supreme Court Ruling Mean for Litigators?
While the court’s decision makes it clear that attorneys may face defamation claims for statements made outside the context of a judicial proceeding, the opinion also notes there are “many defenses available in defamation law and ultimately by the First Amendment.”
That reasoning will be of little solace to many litigators who may well decide to simply abandon the practice of discussing their clients’ cases publicly in order to avoid the potential of being sued for defamation.
Given the court’s opinion, it is reasonable to expect that we will see fewer press releases announcing litigation in the Lone Star State. While some lawyers will continue to publicize their cases outside the confines of a judicial filing or hearing, the prospect of doing so now will likely be a bridge too far for most trial practitioners.
Staying Top of Mind Without Discussing Pending Cases
Despite the restrictions included in the Supreme Court’s decision, there are many ways for litigators to keep themselves high on the radar for the public and their clients without fear of being sued for defamation.
For example, if your client wins a substantial court ruling, dismissal, verdict or judgment, there is no prohibition on making that known outside the confines of the courthouse.
While we may not see as many self-congratulatory quotes from lawyers who have prevailed on behalf their clients, there are still many opportunities to let the world know that you were the lawyer who represented the client in their victory. That could come in the form of a press release, blog entry, or social media posts, so long as the language is a pure retelling of what happened in court without providing comment.
Said differently, litigators should not be scared of announcing their favorable courtroom results, if the announcement is not defamatory or otherwise actionable under existing law.
Courtroom lawyers who may now be reluctant to talk about their own cases also have a great opportunity to become expert media sources on litigation that does not involve their clients. With the likelihood that fewer and fewer lawyers will be offering comment on their clients’ pending cases, expect to see a growing need among the media for input from unbiased lawyers who practice in the same area of law.
Make sure reporters know who you are, what you do, and why you would be a great source the next time there is a lawsuit that dovetails with your area of expertise. Establishing and maintaining solid relationships with reporters and editors is a sure-fire way to elevate yourself in the eyes of the public and your clients.
Don’t Forget Your Blog
This also is a good time for litigators (and all attorneys) to consider the effectiveness of a consistent, ongoing content marketing program. While you may not want to publish a blog post about a specific case involving your client’s truck wreck accident (or whatever the particular legal issue is), that does not mean you are prevented from discussing truck wreck cases generally. By writing and speaking about legal matters that do not directly involve your clients, you can greatly expand the pool of people who may need your services in the future.
A robust blog archive can also be a good way to show reporters that you are conversant on the legal issues they cover and that you would be a good source for future reporting.
The Texas Supreme Court’s ruling in the Landry’s case undoubtedly has narrowed the ability of trial lawyers to tout their pending cases as so many have done for years. However, it does not prevent resourceful attorneys from making sure their important audiences know who they are and why they might well be the best hire.