The Texas Supreme Court recently ruled that there are limits on when attorneys are protected by the judicial proceedings privilege or by attorney immunity. Following the Court’s decision in Landry’s Inc. et al. v. Animal Legal Defense Fund et al., Bob Latham and Paul Watler discuss the ruling and when an attorney’s statement to the press, social media, or other public statements – even if conducted on behalf of a client – falls outside the protection of the immunity privilege.

Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. A recent Texas Supreme Court decision limited the protections for Texas attorneys and the attorney immunity privilege in regards to statements made to the public or in the press by attorneys. I asked Jackson Walker litigation partners Bob Latham and Paul Watler, both of whom have substantial Texas and national representations for broadcast and newspaper publishers, to come on the show and walk us through the important decisions of what it means for Texas lawyers.

Bob and Paul, thanks for being here.

Paul Watler: Thank you, Greg. Glad to be here.

Bob Latham: Thank you, Greg.

Greg Lambert: Paul Watler, let’s start with you. Would you mind giving us the details of the Texas Supreme Court’s Landry case decision and what it means for the Texas attorney immunity privilege?

Paul Watler: Sure. The case is Landry’s Inc v. Animal Legal Defense Fund, and it has some interesting factual background that’s probably worth at least briefly noticing. It concerned an aquarium that Landry’s Seafood operated in its Houston location downtown. In that location, it had on exhibition, if you will, several white Bengal tigers. A radio broadcaster was actually given a behind-the-scenes tour of this facility, and then subsequently, she reached out to the Animal Legal Defense Fund and basically complained about the conditions in which the tigers allegedly were being held. What ensued was the Animal Legal Defense Fund putting together a notice letter of an intent to sue Landry’s under the Endangered Species Act, basically contending that these tigers were not being treated humanely and not being handled in accordance with certain protocols. That was the 60-day notice letter, and the day before that 60-day notice period ran, Landry’s filed a lawsuit against the Animal Legal Defense Fund and an attorney acting for the Defense Fund because that attorney had put out a press release and also posted on social media outlets a copy of this letter making these claims about how the animals were being treated – how the tigers were being treated – and making allegations of mistreatment and so forth. Landry’s contended that those statements were defamatory. The attorney defendants defended in part by bringing a motion to dismiss under the Texas Citizens Participation Act, which is our state’s anti-SLAPP statute. Among other things, the attorneys asserted as the basis of that motion to dismiss that these comments in the press release and the release of the letter, posting of these things on social media platforms, was protected both by the judicial immunity privilege—judicial proceedings privilege, I should say—and the attorney immunity privilege, which are two similar somewhat–overlapping privileges that are recognized. The question was really the scope of those privileges and whether they really applied in this particular context. What the Supreme Court ruled was that it rejected the contention that these privileges applied. It basically said that the judicial proceedings privilege was limited strictly, essentially, to judicial proceedings, and these actions by the attorney defendants were not actually taking place in the courtroom or in the course of actual legal proceedings, but preliminary to those. So, it didn’t qualify for the judicial proceedings privilege. The attorney immunity privilege, they basically said that did not apply either, because to do so would effectively sort of be an end-run on the limitations on the judicial proceedings privilege.

Greg Lambert: Thanks, Paul. So, Bob Latham, what should a Texas attorney understand about what is and what isn’t protected now under the Texas attorney immunity privilege?

Bob Latham: Well, Texas attorneys—and I would argue attorneys across the country—always probably needed to be careful. Now there are certain types of attorneys that play their cases out in the media and others that play them out in the courtroom, and then there are attorneys everywhere in between. There’s a lot of different authority across the country as to whether it is a good thing for attorneys to be talking to the press and it is to be encouraged or it is a bad thing. On the one hand, when you have all sorts of commentators and all sorts of pundits who aren’t close to a particular matter that are out there talking about things that they may not know about, it can be helpful especially to the press to have an attorney who’s close to it and can give what would hopefully be more accurate information. On the other, you don’t want the tensions of the courtroom and the inflammatory language of the courtroom to spill out into the public, and you don’t want attorneys stepping over a line in advocating their cases. So, where this leaves an attorney is that the sky isn’t falling, I don’t think. The court was clear in noting that, yes, there are reasons why it is sometimes good and appropriate for an attorney to talk to the press. Attorneys are not without defenses when they do so, it’s just that they don’t have the attorney immunity privilege, and since it’s not within a judicial proceeding, they don’t have the judicial proceedings privilege. But they could be protected by it being a non-actionable opinion. They could be protected by giving true information. They could be protected by, in Texas, we have the third-party allegation rule, where they just say this is being alleged and this is being alleged. So, it doesn’t prohibit them from talking to the press, but they have to be very, very careful because they don’t have immunity. Even before this decision, if somebody was looking to me to get information that was in a pleading, I would say just go look at the pleading yourself. There’s nothing defamatory about an attorney saying, ‘Hey, if you look at pleading number 146, you’ll see our argument on that.’ So, it doesn’t preclude that. But yes, we attorneys are going to have to walk a fine line, and particularly those attorneys who like to play out their cases in the public square are going to have fewer defenses to protect them.

Greg Lambert: Paul, did the Texas Supreme Court draw a line here to show what conduct crosses that line in these public statements?

Paul Watler: Bob mentioned concern about attorneys stepping over the line, and I think this case can be understood very much as a line-drawing exercise by the Texas Supreme Court. Where in particular the Texas Supreme Court drew the line was just recognizing that although an attorney may repeat allegations that have been made in pleadings and may do that in the setting of a press release or a press conference or that sort of thing, whenever an attorney does that, they’re not actually acting as an attorney. They may be, you know, doing it because the client requested that it be done, but you’re not really performing the office of an attorney when you’re acting in that manner. So, that’s where the Supreme Court  drew the line that says if you’re doing things that are actually necessary to advance judicial proceedings, to actually advocate for a client in the course of those judicial proceedings, you will have the protection as an attorney of the judicial proceedings privilege against claims that statements that you’re making are defamatory. But if you’re doing it outside of that context, you’re not in the courtroom, it’s not really essential to those judicial proceedings. In most cases, it probably would not be essential to a judicial proceeding to issue a press release or to post something on social media commenting on your own case. In those instances, because you’ve stepped out of the traditional role or the professional role of acting as an attorney, that’s why the immunity and the privilege doesn’t extend to those actions.

Greg Lambert: So, Bob, what exactly is the purpose behind having these immunity privileges?

Bob Latham: Yeah. The whole purpose for each of these privileges, the judicial proceedings privilege and the so-called attorney immunity privilege, is to allow attorneys to do what they have to do to advocate, to argue, to urge, and you can do all that in the courtroom. I mean, imagine if an attorney can be sued for everything they said in a courtroom. You know, tensions are high, emotions are high, and you don’t want a sideshow. You’ve got the primary lawsuit. You don’t need lawsuits within a lawsuit because the attorney said something. So, it’s designed to allow an attorney to zealously represent his client. But as Paul said, that has to be in the representation of the client. So, if you’re saying something in a courtroom, you’re protected. If you’re saying something in the context of a deposition, a hearing, even a letter that goes to the other side or whatever, the wording that the Court used with regard to attorney immunity is that you have to be acting in a “uniquely lawyerly capacity.” The Court pointed out that there’s nothing uniquely lawyerly about talking to the press. You can hire a PR agent to talk to the press. If the statement comes from a PR agent and is false and the PR agent can be sued, then why if the attorney says the same thing can they not be, because they’re just doing the same function that a PR person is? They made that point, so the directive to the lawyers is make sure you’re acting in a “uniquely lawyerly capacity” or you will not have immunity.

Greg Lambert: Well, Bob Latham and Paul Watler, thank you both for taking the time to walk us through this decision’s impact on Texas’ attorney immunity privilege.

Paul Watler: Thank you, Greg.

Bob Latham: Thanks, Greg.

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The music is by Eve Searls.

This podcast is made available by Jackson Walker for informational purposes only, does not constitute legal advice, and is not a substitute for legal advice from qualified counsel. Your use of this podcast does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.

For questions about Texas’ anti-SLAPP statute, please contact Bob Latham at blatham@jw.com, Paul Watler at pwatler@jw.com, or any member of the Jackson Walker’s Media Litigation team.