Outside the courtroom, a lawyer’s professional activities may include types of communication that increase the risk of a defamation claim. Statements made on the courthouse steps, or in press releases, interviews and written descriptions of litigation can all pose a risk of defamation exposure. Mitigating risk for defamation claims is key to avoid a stressful, costly and protracted lawsuit.

When weighing the decision of whether to publicize a case, it is important to understand and consider factors such as the limits of litigation privilege, the doctrine of presumed damages and the assignment of falsity burdens, as well as to ensure that you and your firm are adequately protected.

Defamation Claims Against Lawyers Are Common

Along with news organizations, lawyers are one of the most common targets of communication-related tort claims, frequently involving press releases a disgruntled opponent believes to be an unfair depiction or claims by pro se litigants over statements an opposing lawyer made in court.

To avoid unwanted exposure, it is important to understand why suits are typically filed and the unpredictable law that governs them. Many defamation claims against lawyers arise from statements that would probably not be considered actionable on a law school exam. However, such claims can frequently survive dispositive motions in front of a cautious judge who would prefer to let a jury decide the matter.

Overview of Defamation Law for Lawyers

Defamation is an umbrella term referring to the torts of libel and slander, historically describing written and oral disparagement. Defamation law is characterized by a tension between the interests of the states to provide remedies for injury to reputations of residents and the Constitutional tradition of freedom of expression. American Jurisprudence has distilled the following minimum standards from Supreme Court jurisprudence:

[T]o prevail on a cause of action for defamation, the complainant must establish the following basic elements: (a) that a statement was published; (b) which was of or concerning the complainant; (c) which was false; (d) was made in violation of the applicable duty of care; (e) was not privileged; and (e) caused damage.¹

Supreme Court caselaw affords the most protection to statements by the press about public officials and/or matters of public concern. However, in most defamation cases against lawyers, a diminished level of protection of speech is afforded, where a defendant bears the burden of disproving a plaintiff’s claims. In legal defamation claims, damages may be based on a lower negligence standard, rather than a higher standard of “actual malice.”

While this area of law is complex, several key factors impact the risk of defamation claims for lawyers and law firms.

Falsity

Defamation claims often entail statements about a client’s adversaries or disputes. The common law on falsity followed by many states requires most attorney defendants to bear the burden of proving the truth of their claims. Plaintiff attorneys may file claims over an opposing party’s press release after prevailing in court. Arguments put forth often involve res judicata, collateral estoppel and the identity of issues prong. A deep understanding of these factors may help a lawyer limit their own defamation exposure.

The distinction between actionable and defensible can be minor, as in the example:

“John Smith stole my money,” and, “I sued John Smith for stealing my money.”

Fair report privilege, substantial truth doctrine and opinion defenses may be supported by the latter formulation as defensible against claims.

Fair Report Privilege

To qualify for fair report privilege, your source must relay an accurate summary of the events of official proceedings. The privilege does not require the summary to be exhaustive or comprehensive,² but should accurately and neutrally summarize the account of a pleading or filing.

Substantial Truth Doctrine

The substantial truth doctrine has led courts to dismiss defamation claims based on descriptions of litigation provided that appropriate “cautionary terms” signal the reader that the statements concern allegations rather than conclusive statements of fact.³ The likelihood of a claim may depend on the difference between a statement describing litigation and an opinion about the merits of that litigation.

Opinion

A defamatory statement must also be based on a statement of fact, rather than opinion. However, tests look beyond the mere labeling of a statement as an opinion to evaluate whether the substance of the opinion suggests a basis in undisclosed defamatory facts,⁴ and/or “implies the assertion of an objective fact.”⁵

Litigation Privilege

While parties and counsel are protected from liability for actions connected to pending litigation, numerous courts have excluded press statements from the protection of litigation privilege. Courts have primarily distinguished between “core” litigation activities, such as hearings and depositions, and ancillary activities, such as talking to the media or interviewing witnesses.⁶

Damages

Injury to reputation is an important element of a defamation claim, and may result in recoverable damages, even when an opponent has no “actual” damages. The Supreme Court has explained that defamation permits the recovery of presumed compensatory damages without actual loss,⁷ since reputational damage is inherently difficult to prove.⁸

Non-Disparagement

Lawyers should also understand the risks posed by non-disparagement clauses commonly incorporated into settlement agreements. Liability for breach of non-disparagement agreements may take the broader dictionary definition for “disparaging” remarks, virtually any remotely negative statement including true statement and opinion,⁹ and could also lead to a fiduciary duty claim by a client.

For lawyers, the recommended strategy is to avoid any public discussion of legal matters that may risk a claim. However, this may not be possible or desirable for every lawyer. Instead, understanding the limits of litigation privilege, the doctrine of presumed damages and the assignment of falsity burdens can permit a more informed decision about whether and how to publicize a case.

While it is not possible to eliminate defamation liability risk, lawyers can mitigate their risks. Lawyers and law firms can further protect themselves from the risk for defamation claims by ensuring adequate levels of professional liability insurance coverage.

1. 104 Am. Jur. Proof of Facts 3d 221.
2. See Aoki v. Benihana, Inc., 58 F. Supp. 3d 439, 445 (D. Del. 2014) (“Despite plaintiffs’ protestations to the contrary, the veracity of the Florida Complaint is irrelevant to whether the press release accurately reflects the Florida Complaint.”).
3. Thompson v. Lee, 888 So. 2d 300 (La. App. 2 Cir. 2004).
4. Kotlikoff v. The Community News, [89 N.J. 62] 444 A.2d 1086 (N.J.1982).
5. Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995).
6. See Douglas R. Richmond, The Lawyer’s Litigation Privilege, 31 Am. J. Trial Advoc. 281, 324 (2007) (citing numerous decisions in support of the observation “Courts are reluctant to extend the litigation privilege to lawyers’ communications with the media because they seldom serve the purposes on which the privilege is founded.”)
7. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974) (“[T]he common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.”).
8. Id. at 373 (citing The (Restatement) Second of Torts for the proposition that “in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.”).
9. 36 Sohal v. Michigan State Univ. Bd. of Trustees, 295557, 2011 WL 1879728, at *4 (Mich. Ct. App. May 17, 2011).