Loose Lips May Sink Your Ship and Create Liability

After a rancorous political campaign season, I read the Court of Appeals opinion in Bedford v Witte and Hoyer with great interest. In both political campaigns and litigation, broad and emotional allegations are often made.

While there are few rules for political campaigns, there are boundaries for statements by attorneys and other persons about public or judicial proceedings. In this opinion, the Court helped clarify these boundaries.

The attorneys filed suit for their client and against the defendants. Two defendants
later filed suit against the plaintiff’s attorneys claiming that they made various false and malicious statements about them. The attorneys claimed that their statements were privileged and thus, they were immune from liability.

The Court’s opinion on the attorneys’ privilege defense can be summarized as follows:

1. Statements by attorneys in the course of litigation are, for the most part, privileged under the “judicial” privilege. The privilege bars liability for these statements.

2. The “judicial” privilege does not apply to statements about the litigation that are extraneous to, and unnecessary for, the litigation. Thus, posting a judicial complaint on a web site and comments to the news media do not fall within this “judicial” privilege.

3. The “fair and true reporting” privilege is a defense to liability if the statements are a fair and accurate report of public or official matters and proceedings. The Court ruled that posting the actual complaint that initiated the suit on a web site was a fair and true report of the proceedings. Thus, the “fair and true reporting” privilege barred liability for this web posting.

4. The attorneys statements to the news media that they “can say with certainty” that the defendants violated the law in various ways were not privileged. The attorney’s statements were made with such certainty that they expanded and went beyond the public record or proceedings. The statements were not based on a fair and true report of the proceedings and were not privileged. The attorneys could be liable for these statements.

So what does all of this mean? My take away from this opinion is that attorneys and other persons need to take great care to limit their public statements about litigation or other public proceedings, making sure what they say is accurate with very little embellishment. Statements on contested matters should be qualified with phrases such as “it is alleged” or “it is claimed” and not stated to the news media with certainty. When in doubt, do not comment or seek legal advice in advance.

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