High-profile attorneys in Houston, and throughout the State of Texas, routinely issue headline-grabbing press releases about their lawsuits. The scene is oft-repeated: the attorney, flanked by his clients, holds a press conference to discuss the allegations, which is followed soon thereafter by an official press release to the local media. Recently, the Texas Supreme Court held that the judicial-proceedings privilege and attorney immunity do not shield attorneys who make defamatory statements outside a judicial proceeding – even if the statements accurately summarize the pleadings. In Landry v. Animal Legal Defense Fund, the attorney for the ALDF issued a notice letter pursuant to the Endangered Species Act to Landry’s regarding the tiger habitat at its Downtown Aquarium. The next day, the ALDF issued a press release describing the notice letter and criticizing the tigers’ conditions. This was followed by newspaper headings regarding the potential lawsuit as well as numerous Facebook posts and tweets by the ALDR regarding the tigers.
In response, Landry’s sued the ALDF for libel. After an appeal, the Texas Supreme Court determined that the notice letter was protected by the judicial-proceedings privilege because it was “necessary to set the judicial machinery in motion.” However, the Court concluded that the ALDF lost the judicial-proceedings privilege’s protections when it repeated the notice letter’s allegations with the press release for publicity purposes “outside the protected context within which the statements originally were made.” The Court also held that the publicity statements and social media posts were not the actions of a lawyer acting in the lawyerly capacity to which attorney-immunity applies. Therefore, a press release may subject an attorney to a suit for libel, even if they just repeat the allegations set forth in their petition.