Beyond The Headlines, Part II

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When discussing cases outside the courtroom, be aware of potential civil liability concerns

By Wendy Patrick Mazzarella

Mazzarella

Attorneys who have represented celebrities can relate to the pros and cons of trying to prepare a case in the limelight. When cases generate a large amount of publicity, as the trial date draws near, the media follows the lawyers in and out of court, wanting to know everything they are willing to tell them about their case. The legal commentators often jump into the fray and add their two cents as well. Assuming you are not barred by a gag order, when you want to respond, should you? And if you decide to talk to the media, ethically, what can you say?

Discussing a case out of court implicates legal and ethical rules, as well as civil liability concerns for the practitioner. A working knowledge of these issues will protect the lawyer from legal and ethical liability, as well as protect their personal finances from a lawsuit by a party or member of the public. In Part I we examined California Rule of Professional Conduct 5-120, Trial Publicity, selected California Business and Professions Code Sections including 6068(a), Duties as an Attorney, and ABA Rules 3.6, Trial Publicity, and 3.8, Special Responsibilities of a Prosecutor. This month we will look at some potential civil liability concerns lawyers should be aware of when discussing their cases outside of court.

Defamation

As the saying goes, it’s easier to tell the truth. When talking to a reporter, you can avoid allegations of civil liability by sticking to the unadulterated, unembellished facts of your case. Defamation consists of libel and slander.

Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (California Civil Code §45.)

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: charges any person with crime, or with having been indicted, convicted or punished for crime; imputes in him the present existence of an infectious, contagious or loathsome disease; tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profits; imputes to him impotence or a want of chastity; or which, by natural consequence, causes actual damage. (California Civil Code §46.)

Your opinion may be worth more than you think: When discussing your case outside of court, be aware of the difference between making statements of fact and statements of opinion. In Weiner v. San Diego County (9th Cir. 2000) 210 F.3d 1025, 1031, the court found that the district attorney’s statement to the press that “this case just proves that cases, unlike fine wine, get worse rather than better, with age[,]” was a statement of opinion and would not support a California state-law action for defamation. The court defined opinions, which enjoy First Amendment protection, as “statements that cannot reasonably be interpreted as stating actual facts.” (Id. at 1031 [citing Gillbrook v. City of Westminster (9th Cir. 1999) 177 F.3d 839, 861 (internal quotation marks omitted)].)

To decide whether a statement is one of opinion or fact, courts look to the “totality of circumstances” surrounding the statement “including (1) the broad context of the statement, (2) the specific context and content of the statement, and (3) ‘whether the statement itself is sufficiently factual to be susceptible of being proved true or false.’” (Weiner, supra, at 1031 [citing Underwager v. Channel 9 Australia (9th Cir. 1995) 69 F.3d 361, 366].) The Weiner court found that all three Underwager factors pointed to the district attorney’s statement being one of opinion, not fact. (Weiner, supra, at 1031-32.)

“In my opinion” may not always save your statement: Prefacing statements with lead-ins such as “it is my opinion that,” may not save them from defamation claims if they are made in such a way to insinuate that they are supported by undisclosed facts. Some false statements are so harmful that they cannot be saved even when prefaced with “in my opinion.” (See Milkovich, supra [statements such as “In my opinion John Jones is a liar” may still imply false assertion of facts and may cause just as much damage to reputation].) As noted in Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1156 [citing Haynes v. Alfred A. Knopf, Inc. (7th Cir. 1993) 8 F.3d 1222, 1227], “[a] statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”

The point to remember is that you are always more likely to be protected when you have taken the time to verify your information to the best of your ability before you talk about your case. The time spent investigating and checking your facts will be well worth the countless hours of potential litigation you can avoid by making sure that your information is correct.

California Civil Code Section 47

California Civil Code §47 (2009) states in pertinent part: A privileged publication or broadcast is one made:

(a) in the proper discharge of an official duty; (b) in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with §1084) of Title 1 of Part 3 of the Code of Civil Procedure, [exceptions and subsection (c) omitted]; (d)(1) by a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.

(2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following: (A) violates Rule 5-120 of the State Bar Rules of Professional Conduct; (B) breaches a court order; (C) violates any requirement of confidentiality imposed by law. (e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.

CCC 47’s application in a criminal case: In Kilgore v. Younger (1982) 30 Cal.3d 770, the California Supreme court held that California Civil Code §47 subdivision 1 provided an absolute privilege for publications made by an attorney general in the discharge of an official duty.

In Kilgore, Attorney General Evelle J. Younger had an organized crime commission compile a written report to study criminal conspiracies and criminal procedural controls.  (Id. at 774.) The commission delivered to Younger a report that included plaintiff Kilgore’s name as one of 92 persons suspected in various types of criminal activity including bookmaking, narcotics, arson, prostitution, pornography, and murder. (Id.)

In addition to Kilgore’s name, the report contained his address, picture and detailed information implicating him in criminal activity. (Id. at 774-75.) The day the report was delivered, Younger held a press conference where he adopted the report and provided copies to the news media. (Id. at 775.) Several newspapers subsequently published the story. (Id.)

Kilgore brought actions against Younger as well as news media defendants for defamation, invasion of privacy and intentional infliction of emotional distress. In addressing the claim against Younger, the court cited from Civil Code §47 subdivision 1: “a privileged publication is one made ‘[in] the proper discharge of an official duty.’” (Id. at 778.) “The absolute privilege is extended to ‘high-ranking state and federal officials, such as the President of the United States, the governor of any state or territory, cabinet officers of the United States and the corresponding officers of any state or territory’ (Id. [quoting Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 412]), on the rationale that their ability to function would be impaired and society adversely affected if they were not absolutely free of the threat of suit by the defamed seeking recompense for injury.” (Id.)

The court recognized that the privilege applied despite malicious or other improper motivation, and applied to actions such as defamation, but did not apply to malicious prosecution. (Id. “For the absolute privilege to attach, the public official need only be properly discharging an official duty.” (Id.)

The court found that Younger’s press conference constituted an “official duty.” (Id. at 779.) Applying Civil Code §47, subdivision 1, the court held that “[h]aving been made within the proper scope of the Attorney General’s authority, that is, in the ‘proper discharge of an official duty,’ the challenged publication is absolutely privileged.” (Id. at 783.)

CCC 47’s application in a civil case: In Rothman v. Jackson (1996) 49 Cal.App.4th 1134, the court held that CCC Section 47(b)’s litigation privilege did not extend to private attorneys “litigating in the press.” (The court contrasted the “official duty” privilege found in §47(a), which applies to public officials and district attorneys. (Id. at 1149, fn. 6.))

Rothman was retained to represent a minor boy in an action against singer Michael Jackson for alleged tortious conduct against the boy. (Id. at 1138.) A psychological evaluation of the boy, which contained charges against Jackson, was leaked to the press, causing enormous publicity.  (Id.) The defendants responded by accusing Rothman of making false charges in order to extort money from Jackson. They made these accusations in a press conference and in other media statements. (Id. at 1139.) The extortion charges damaged Rothman’s professional reputation. (Id.)

The court stated that “a communication is privileged under section 47 subdivision (b) if made in, or in anticipation of, litigation by litigants or other authorized participants to achieve the objects of the litigation, and if the communication has some connection or logical relation to the action.” (Id. at 1145.) Although the communications at issue were made by potential participants in a possibly forthcoming criminal prosecution, the court did not find that the charges against Rothman possessed the required “logical relation” to the subsequent litigation. (Id.)

Further, the court did not believe that the statements were made to “achieve the objects of the litigation” merely because they related to the same subject matter and were geared to exculpate Jackson in the public eye, in the same manner that they intended to exculpate him in court. (Id.) 

The court held that the “connection or logical relations” test that the communication must pass in order to be privileged is a “functional connection.” (Id. at 1146) (emphasis in original) The “communicative act . . . must function as a necessary or useful step in the litigation process and must serve its purposes.” (Id.) (emphasis in original)

The court further dismissed the contention that the defendant’s statements in the press were covered by California Rule of Professional Conduct 5-120(C). (Id. at 1149, fn. 5.) “[T]he rule does not provide, or even imply, that defamatory statements made by attorneys in extrajudicial statements in defense of their clients should be privileged and thus not subject to redress in a court of law.” (Id.) The court thus declined to extend the litigation privilege to “litigating in the press.” (Id.)

Also note, however, that your statements about your case, as with any statements you make, will also be subject to California Business and Professions Code §6106 which states in pertinent part that: “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise . . . constitutes a cause for disbarment or suspension” (emphasis added).

And depending on the motivation or plan of the lawyer making the out-of-court statement, keep in mind that California Business and Professions Code §6128 imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP 6128(a)) Punishment for violating this section is up to a six-month jail sentence or a fine of up to $2,500 or both.

Conclusion

Balancing the public’s right to information against a party’s right to a fair trial can be a challenging task.  But armed with a working knowledge of the ethical rules and legal principles involved, you can ensure that the statements you make about your case are both insightfully phrased and constitutionally sound. Regardless of the facts of your case, a working knowledge of the applicable legal and ethical rules will permit you to represent your client diligently and effectively, as well as ethically and professionally.

• This article does not constitute legal advice. Please shepardize all case law before using.

• Wendy Patrick Mazzarella is a San Diego County deputy district attorney who has tried a number of high profile cases, and she is a member of the State Bar Committee on Professional Responsibility and Conduct.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.
  
  
• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-Assessment Test

Indicate whether the following statements are true or false after reading the MCLE article. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

SELF-ASSESSMENT TEST

Indicate whether the following statements are true or false after reading the MCLE article on trial publicity. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415/538-2504.

1. Making a statement to a reporter that turns out to be false may subject the lawyer to liability specifically for libel.
2. Even if a lawyer’s statements relate to the facts of a pending case, an attorney can still be civilly liable for things he or she says to reporters outside of court.
3. A lawyer is always protected in making statements to a public journal, even if the statements are highly prejudicial to the other side and are not a matter of public record.
4. If a lawyer prefaces his or her statement with “in my opinion,” he or she is assured of escaping liability for defamation, since defamation only deals with false statements of fact.
5. A lawyer is not liable for defamation if he or she makes false statements about one of the witnesses in court, even if he or she is perfectly aware the statements are false.
6. A statement spoken to the media about the opposing party in your case might arguably be actionable as slander if it falsely states the person has AIDS.
7. A written publication about someone that is false and unprivileged need only have a tendency to injure him or her in his occupation to be actionable.
8. If your opposing counsel falsely accuses your star witness of being untrustworthy and then claims that was just his or her opinion, a court in determining this will look at the circumstances under which the statement was made.
9. Although there is a gag order in place, a communication from a lawyer to a public journal will nonetheless be privileged under CCC 47 as long as it does not violate the trial publicity rules per CRPC 5-120.
10. Lawyers are automatically protected from defamation liability if the statements they make about their opposing counsel in the case are in response to something unfair the opposing lawyer has already said about them.
11. An elected district attorney’s statements at a press conference will be privileged, even if they are false.
12. A lawyer may be liable for defamation if he or she falsely impugns the integrity of opposing counsel during a court proceeding.
13. A truthful written statement you give to the media about one of the witnesses in your case will not be punishable as libel even if it causes the person to be shunned or avoided.
14. A lawyer will not be liable for defamation if it is obvious that he or she is expressing an opinion that is not based on any objective facts within their knowledge.
15. For purposes of avoiding defamation liability, opinions are viewed differently than statements of actual facts.
16. Lawyers’ statements about their cases will always be absolutely privileged as long as they are made during a press conference.
17. If a lawyer knowingly makes a false statement to the press about his or her opposing counsel, he or she may be subject to discipline per BP 6106 even if the statement is not defamatory.
18. Attorneys are not protected in discussing the case in the press in the same fashion that public officials would be.
19. An attorney could potentially face State Bar discipline for making false statements about his or her case, even if the statements cause no prejudice to the other side.
20. A lawyer may not be protected in making statements to a public journal if the statements violate a legally protected right of confidentiality.