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MLRC MediaLawLetter November 2004 Page 21

Lawyer Who Gives Pleading to Reporter Can Be Held Liable for Defamation
By Carl A. Solano phia trial judge, Albert Sheppard, reasoned that he could
not “ignore the chilling effect that could result from effec-
On October 20, 2004, the Supreme Court of Pennsyl- tively precluding attorneys from forwarding copies of the
vania handed down two notable defeats for First Amend- pleadings they have filed to the press.” Bochetto v. Gib-
ment interests in Pennsylvania. The first was in Norton v. son, 2002 WL 434551 (Pa. Ct. C.P.) (Mar. 13, 2002).
Glenn, which was the subject of a report in last month’s The Pennsylvania Superior Court affirmed, but, on further
MLRC MediaLawLetter at 11. The other was Bochetto v. appeal, the Supreme Court reversed in a 4–2 decision
Gibson, 2004 Pa. LEXIS 2466, 2004 WL 2358289, (Pa. written by Justice Russell Nigro.
Oct. 20, 2004) (Nigro, J.) in which the Court held that a The Court drew a distinction between two publica-
lawyer can be held liable for defamation merely because tions by Gibson of the information in his complaint
he or she faxed a copy of a filed civil complaint to a re- against Bochetto. First, there was the publication to the
porter. trial court through the filing of the complaint. Gibson had
an absolute privilege from liability for that publication
Background because it was a communication made in the regular
course of a judicial proceeding that was pertinent and ma-
The case involved name-calling by two Philadelphia
terial to the redress sought — a traditional application of
lawyers who were in the midst of hotly-contested litiga-
judicial privilege. However, the Court held that Gibson’s
tion. The plaintiff was George Bochetto, a former Penn-
separate publication of the information in the complaint to
sylvania Boxing Commissioner who is known to a number
the reporter was not privileged.
of media entities for his representation of plaintiffs in re-
It “was an extrajudicial act that occurred outside of the
cent libel actions brought against press organizations.
regular course of the judicial proceedings and was not
In 1997, he was retained by a Pennsylvania fox-
relevant in any way to those proceedings.” In entering
hunting group to defend it in local real estate litigation.
summary judgment for Gibson because of concerns about
After the fox hunters lost at trial, they retained a new law-
a “chilling effect” on reporting, the trial court erred, in the
yer, Kevin Gibson, to sue Bochetto for malpractice, charg-
Supreme Court’s view, because the judicial privilege “is
ing that Bochetto had failed to inform the fox hunters that
not meant to promote the airing of pleadings to the me-
an expert report prepared on their behalf contained infor-
dia” and “is only meant to promote the airing of issues
mation suggesting that they were likely to lose the case.
and facts during judicial proceedings.”
After filing the complaint, Gibson faxed a copy of it to
The Court continued, “although the failure to apply
a reporter for a Philadelphia legal newspaper, The Legal
the judicial privilege to an attorney’s communication with
Intelligencer, which then published a story about the mal-
the media may inhibit the ability of the media to access
practice case and quoted some of the allegations. Bochetto
the documents filed in a case, that problem is not one that
sued Gibson for defamation, arguing, among other things,
the judicial privilege was designed to remedy.”
that the faxing of the complaint to the reporter made Gib-
Two members of the Court, Justices Ronald Castille
son liable for publication of any of the complaint’s de-
and Max Baer, dissented. They noted that the information
famatory content. (Gibson filed a defamation counter-
given by Gibson to the reporter was no more than the re-
claim for statements made by Bochetto to the same news-
porter could have gotten by obtaining a copy of the com-
paper in an interview, but lost that claim on summary
plaint at the courthouse, and they saw “no principled dis-
judgment because he could not prove damages.)
tinction” between those two situations. Both were meth-
ods of furnishing legitimate information to the public and,
Judicial Proceedings Privilege
they concluded, both should be privileged. Justice Sandra
Gibson defended on the basis of judicial privilege, ar- Newman did not participate in the decision.
guing that he was absolutely immune from suit because he The Court’s decision does not disclose whether Gib-
merely provided the reporter with a judicial pleading, and son’s faxing of his complaint to the reporter was unsolic-
he won on that basis at summary judgment. The Philadel-
(Continued on page 22)
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Page 22 November 2004 MLRC MediaLawLetter

Lawyer Who Gives Pleading to Reporter

(Continued from page 21) Of course, defenses other than absolute privilege
ited or was in response to the reporter’s request, and the should apply to defamation claims based on dissemination
decision does not distinguish its result on that basis. In of pleadings, and the Supreme Court itself left open the
his argument, Bochetto suggested that a lawyer who possibility of a qualified immunity defense for Gibson.
makes scurrilous charges against another lawyer in a But such defenses often present factual issues not suscep-
pleading and then sends that pleading to a reporter en- tible to pretrial disposition, and few lawyers can be ex-
gages in unprofessional conduct, and that theme may pected to want to engage in protracted litigation regarding
have resonated with some of the justices. In his own them.
case, Bochetto successfully defended against the malprac- Therefore, as word of the Bochetto decision spreads, it
tice action that Gibson had filed, winning a jury verdict is not difficult to imagine that law firms throughout Penn-
just a few days after the Supreme Court’s decision. sylvania will develop policies that discourage or forbid
But the Supreme Court’s decision is not limited to forwarding of litigation documents to reporters, and that
internecine lawyer battles and will have much broader they will advise their clients to follow similar practices.
implications. Obtaining of pleadings, briefs, and other And if such caution applies to the mere sharing of filed
court documents from lawyers pleadings, the reticence will
is a common part of everyday As word of the [Bochetto] decision likely spread to the making of
reporting to which the Court’s spreads, it is not difficult to imagine any comments about a case at
decision presents a serious ob- that law firms throughout all, since no privilege applies to
stacle. In answer to the trial Pennsylvania will develop policies extrajudicial statements.
court’s concerns about press that discourage or forbid forwarding Doctrinally, as a strict mat-
interests, the Supreme Court of litigation documents to reporters, ter of judicial privilege, the Su-
observed that a reporter can and that they will advise their preme Court’s decision is not
always obtain a filed document clients to follow similar practices. without legal support. While
from a courthouse and, without public relations often are an
explanation, declared that court clerks cannot be held li- important component of a lawyer’s comprehensive legal
able for distributing copies “so long as they act in accor- strategy in high-profile litigation, the dissemination of
dance with the law.” pleadings to reporters does not perform the type of direct
But obtaining a filed document from counsel often is judicial function to which that privilege typically has ap-
quicker, more convenient, and less expensive than going plied. But from a policy standpoint, the Bochetto decision
to court, and can be done while interviewing the lawyer makes little sense. It provides scant protection to plain-
for an explanation of what the document provides. Per- tiffs’ reputations, since the allegedly defamatory informa-
haps, as courts migrate to electronic filing systems, the tion already is in the public domain in official court files.
inconvenience of obtaining documents from a court office The main effect of the decision will be inhibition of
may dissipate, but that day is not yet here and it will not the press by forcing reporters to go to a courthouse to ob-
eliminate the other advantages of direct lawyer contact. tain the same information that they could more easily ob-
Meanwhile, the “chilling effect” feared by the trial tain by fax or e-mail from counsel. The quick brush-off
court will be real. Lawyers — usually a cautious group to that the Court’s opinion gave to the policy of informing
begin with — are unlikely to risk personal litigation to the public is of deep concern.
assist a reporter. Pleadings often contain allegations that One answer to this concern may be that the Bochetto
might be characterized as defamatory, and complaints are case was argued under the wrong privilege. Rather than
particularly susceptible to such a claim, since they typi- claiming a judicial privilege to disseminate court docu-
cally will accuse a defendant of some sort of unlawful ments to the press, such communication can be viewed as
conduct. a natural adjunct to the fair report privilege of the press to
(Continued on page 23)
For exclusive use of MLRC members and other parties specifically authorized by MLRC. © Media Law Resource Center, Inc.

MLRC MediaLawLetter November 2004 Page 23

Lawyer Who Gives Pleading to Reporter

(Continued from page 22) protections for defendants than do other qualified privileges
report about judicial proceedings. After all, a lawyer who in Pennsylvania. Fair report was not argued by Gibson, and
provides a court document to a reporter is merely enabling that issue therefore remains open.
the press to report about it.
The Supreme Court hinted at the possibility that it may Carl A. Solano is a partner with Schnader Harrison
entertain this argument, citing to Section 611 of the Second Segal & Lewis LLP in Philadelphia. Mr. Bochetto of Bochetto
Restatement of Torts in a brief footnote suggesting that & Lentz, P.C., represented himself in the Supreme Court. The
some sort of qualified privilege may be applicable. While defendant was represented by Abraham Reich of Fox, Roths-
not absolute, the fair report privilege provides more robust child, O’Brien & Frankel LLP.

Alabama Supreme Court Alters Standard for Proof of Common Law Malice
By Dennis R. Bailey Alabama Supreme Court Remands for Trial
However, the Alabama Supreme Court reversed the trial
The Alabama Supreme Court in Wiggins v. Mallard, No. judge and remanded the case for jury trial. The court opined
1030937, 2004 WL 2367838 (Ala. Oct. 22, 2004) (Woodall, that in addition to previous ill will, hatred or spite, common-
J.) has made it significantly easier for private figure plain- law malice could also be proven by (1) recklessness of the
tiffs to overcome a claim of qualified privilege when a publication and (2) prior information regarding its falsity.
newspaper publishes false information gathered from law The court determined that the conflict between the testi-
enforcement sources concerning arrests. mony of the editor and the police chief created a factual ques-
The case involved the misidentification of the first name tion from which a jury could reasonably conclude that a
of a person arrested on drug charges. The article was writ- “deliberate falsehood” was published if the jury believed the
ten after the editor/reporter of a police chief instead of the editor.
community newspaper personally The conflict between the testimony Unfortunately, this opinion
spoke with the local police chief of the editor and the police chief blurs the distinction between
over the telephone to obtain the created a factual question from common-law and constitutional
arrest information which, after which a jury could reasonably malice. Historically, common-
publication and an irate call from conclude that a “deliberate law malice was thought to have
the innocent “victim,” the chief to be based upon a prior history
falsehood” was published.
promptly disavowed. of dealings between the parties
Once the chief recanted and denied providing the incor- establishing a motive to publish a falsehood and harm the
rect name to the newspaper, the newspaper promptly pub- private figure plaintiff whereas constitutional malice focused
lished a retraction – which in Alabama could insulate the primarily on the attitude of the author toward the truth or fal-
paper from punitive damages. sity of the publication.
Because there was absolutely no evidence of a prior his- This concept was embodied in the existing Alabama Pat-
tory of ill will, hatred or malice between the editor/reporter tern Jury Instruction 23.13, which – after this case – appears
or the police chief and the misidentified person, the trial to no longer be valid. And, in the court’s defense, the law in
judge granted summary judgment for both the police chief Alabama prior to this opinion was not a model of clarity.
and the newspaper. But, the problem with unofficially combining the con-
Such a ruling would have been consistent with the exist- cepts is that there is no requirement that a private figure
ing pattern jury instruction based upon cases defining com- plaintiff prove common-law malice by clear and convincing
mon law malice to require a prior history of ill will creating evidence.
a motive to publish a false defamatory fact. (Continued on page 24)