Commenting on Cases: Don't let Blogs and Press Releases get you in Trouble
By John W. Amberg
John W. Amberg is a member and former chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee, and a partner in
Bryan Cave LLP. The opinions expressed here are his own.
When a real estate mogul confides to his ghostwriter that his deals are built on “truthful hyperbole” and his eponymous tower grows 10 phantom stories, it is not surprising when “alternative facts” become part of the playbook. But lawyers play by different rules, and their brand is their trustworthiness. When lawyers engage in self-promotion by publicly announcing new lawsuits and trumpeting their victories, their blogs and press releases may be regulated under the rules of professional conduct and could also expose them to liability.
Blogging may be advertising. Attorney advertising is constitutionally-protected speech but “communications” concerning an attorney’s availability for professional employment are subject to reasonable regulation by Rule of Professional Conduct 1-400 and Business and Professions Code Sections 6157, et seq., which prohibit false, misleading, or deceptive messages. Section 6158, dealing with advertising by electronic media, adds that “the message as a whole must be factually substantiated.”
In Formal Opinion No. 2016-196, the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) applied these rules to lawyer blogs, and particularly, blogs where lawyers post reports of their legal victories. While “general expressions of excitement or exultation over a single result” are not subject to regulation, multiple posts may implicitly signal the attorney’s availability for employment and constitute advertising. COPRAC warned that a message about the ultimate result of even one specific case, if presented out of context and without adequate information as to the applicable facts or law, or a proper disclaimer, is presumed to be false, misleading or deceptive. Such reports may give rise to an unjustified expectation that the same results can be obtained for other clients, which falls under the ethical prohibition against guarantees, warranties or predictions. False and deceptive websites have subjected lawyers to discipline and so, too, may blogs that violate the Rules.
Press releases about lawsuits are not automatically privileged. Press releases may give rise to a different kind of unwelcome exposure. In two recent cases, lawyers were sued for defamation after they issued press releases about lawsuits.
In J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, the defamation claim arose out of a False Claims Act case involving the sale of PVC pipes used in underground water systems. On behalf of states, cities, and water districts, Phillips & Cohen LLP sued the pipe manufacturer, J-M Manufacturing Co., Inc. (J-M), alleging that the defendant had misrepresented that its pipe met industry standards. In the first phase of the trial, the plaintiffs introduced evidence that J-M had altered its manufacturing process to increase production and the pipes did not uniformly meet the industry standards. The jury found that J-M falsely represented that its pipe complied with the standards and presented fraudulent claims for payment.
During trial, Phillips & Cohen stressed that it was not a product liability case and that plaintiffs did not need to prove defects in shipments of pipes or that pipes had failed. However, the day after the verdict, the law firm issued a press release headlined: “[J-M] faces billions in damages after jury finds [J-M] liable for making and selling faulty water system pipes.” The press release went on to describe J-M’s pipe as “substandard,” “weak,” and “shoddy.” J-M sued the law firm for defamation and trade libel, charging that its press release grossly misrepresented the jury’s findings. Phillips & Cohen moved to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure Section 425.16, citing the “fair report” privilege in Civil Code Section 47(d) which states: “A privileged publication or broadcast is one made...(d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial...or (C) other public official proceeding, or (D) of anything said in the course thereof....”
The Superior Court denied the motion on the grounds that the press release was not a fair and true report of the jury verdict because violation of the False Claims Act is not the same thing as finding that the manufacturer sold faulty pipes, and that whether the report was fair and true was a question of fact for the jury.
The Second District Court of Appeal reversed, in a 2-1 decision. Although normally a question for the jury, it concluded the “fair report” privilege applied to the press release as a matter of law. J-M’s suit was predicated on a “strained construction” of the language in the press release, and relied on snippets taken out of context. Phillips & Cohen was guilty of self-promotion and puffery, but “its description of the evidence at trial and the jury’s special verdict in the...press release falls comfortably within the permissible degree of flexibility and literary license afforded communications to the media concerning judicial proceedings.” The dissent was unconvinced, concluding the law firm had created a false impression of the jury’s findings “by manipulating language and interlacing truth with fiction.”
Another lawyer escaped liability by relying on the fair report privilege for his press release in Argentieri v. Zuckerberg. In 2010, Paul Ceglia sued Mark Zuckerberg and Facebook, alleging that he had acquired an 84 percent ownership interest in Facebook under a 2003 “work for hire” contract with Zuckerberg. Ceglia’s verified complaint was filed by attorney Paul Argentieri. DLA Piper and other law firms associated in as co-counsel for Ceglia, but eventually withdrew as questions were raised about the contract’s authenticity. The suit was dismissed after the court found that the alleged contract was a fabrication and Ceglia had spoliated evidence. Zuckerberg and Facebook then sued Argentieri and the other lawyers for malicious prosecution.
On the same day the malicious prosecution suit was filed, Facebook’s general counsel Colin Stretch sent an e-mail to the press which said: “...DLA Piper and the other named law firms knew the case was based on forged documents yet they pursued it anyway, they should be held to account.” Argentieri sued Facebook, Zuckerberg, and Stretch for defamation, alleging that although he was not named in the e-mail, everybody knew it was about him.
The Superior Court granted the defendants’ motion to strike under the anti-SLAPP statute, and the First District Court of Appeal affirmed, holding that the complaint was barred by the fair report privilege. The appellate court rejected an alternative argument that Stretch’s press release was covered by the litigation privilege under Civil Code Section 47(b) because the litigation privilege will not protect statements that do not further the objects of the litigation and are made to persons who lack a substantial interest in the litigation, including the press. Although the act of sending a copy of a pleading to the press still may be privileged, the privilege should not permit “litigating in the press,” because this poisons jury pools and brings disrepute on the judiciary and the bar.
By contrast, the fair report privilege expressly applies to communications to the press. To be “fair and true,” the report only must capture the gist of the proceedings, and is measured by its “natural and probable effect” on the mind of the average reader. As the J-M Manufacturing court held, the defendant is entitled to a certain degree of flexibility and literary license. Stretch’s e-mail fairly and truly described the gist of the allegations in a publicly-filed complaint, even if the description was incomplete.
Lawyers should not be lulled by these cases because their results could easily have gone the other way, especially if a jury had been allowed to decide the issue. These cases warn that a press release about a case probably will not be protected under the litigation privilege, and may be challenged as a fair and true report. Therefore, if lawyers choose to market themselves by commenting publicly about a case, they should take care that their messages are not false, misleading or deceptive, or they could pay a price in the form of discipline or damages.
 Donald J. Trump and Tony Schwartz, The Art of the Deal 58 (1987); Vivian Yee, Donald Trump’s Math Takes His Towers to Greater Heights, N.Y. Times, Nov. 1, 2016.
 Standard (1) of Rule 1-400; Bus. & Prof. Code §6158.1.
 J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87 (2016).
 Id. at 99.
 Id. at 105.
 Id. at 115-16.
 Argentieri v. Zuckerberg , __ Cal. App. 5th ___ (1st Dist. Feb. 15, 2017).
 Civ. Code §47(d).