Tort Law

Lawyer statements in press release aren't protected by judicial proceedings privilege, top Texas court rules

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The Texas Supreme Court ruled Friday that lawyer statements about a client’s allegations made in a press release and social media aren’t protected by the judicial proceedings privilege or attorney immunity.

The May 21 court decision revives a defamation lawsuit filed by the Landry’s restaurant company against the Animal Legal Defense Fund, Law360 reports.

Landry’s sued over statements made by the fund about the treatment of four white Bengal tigers housed at the Landry-owned Downtown Aquarium restaurant in Houston.

“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 Texas Supreme Court said.

“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,” the state supreme court added.

The defamation suit was filed by Landry’s Inc., owner of the Downtown Aquarium in Houston where the four white Bengal tigers live. Landry’s sued after the Animal Legal Defense Fund publicized its 60-day notice of intent to sue for violations of the Endangered Species Act in a press release that criticized the tigers’ conditions. The fund also posted on Facebook and tweeted about the tigers.

The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers.

“Statements to the media, by definition, are not made within a judicial proceeding,” the state supreme court said.

Statements made before a suit is filed can be privileged if they are communications that are themselves preparatory to filing suit. But the media statements don’t qualify, the state supreme court said.

Attorney immunity is an independent privilege that protects lawyers from liability to nonclients. The privilege attaches when lawyers act on behalf of their clients in a “uniquely lawyerly capacity,” the court said. Publicity statements aren’t covered because they can be made by anyone, including press agents and spokespeople, the court said.

The state supreme court sent the case back to the appeals court to determine whether Landry’s established its defamation claims.

Aaron Streett of Baker Botts, Landry’s lawyer, told Law360 in a statement that Landry’s was “elated and vindicated” by the decision.

“The court’s important opinion clarifies Texas law by establishing that attorneys do not enjoy a special immunity to defame opposing litigants in the press or on social media,” Streett said.

Anthony Eliseuson, the litigation program director for the Animal Legal Defense Fund, told Law360 that the group is disappointed in the decision, but it looks “forward to again establishing the lone remaining defamation claim is without merit.”

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