PJC Business 2024

PJC 110.9

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

PJC 110.9

Judicial-Proceedings Privilege and Attorney Immunity (Comment)

Judicial-proceedings privilege. “Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.” Landry’s, Inc. v. Animal Legal Defense Fund , 631 S.W.3d 40, 46 (Tex. 2021) (quoting James v. Brown , 637 S.W.2d 914, 916 (Tex. 1982)). “The ‘due course of a judicial proceeding’ may include com munications ‘in serious contemplation of such a proceeding.’” Landry’s, Inc. , 631 S.W.3d at 46 (quoting Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 485 n.12 (Tex. 2015)). But “statements to the media or the public in which parties or their attorneys publicize defamatory allegations raised in a lawsuit” are not protected by the privilege because they “are not made within a judicial proceeding,” “are not directed to the court or the opposing party,” and “play no formal role in the adjudicatory process.” Landry’s, Inc. , 631 S.W.3d at 48. Attorney immunity. Under the doctrine of attorney immunity, otherwise wrong ful conduct by an attorney “is not actionable if it is part of the discharge of the law yer’s duties in representing his or her client.” Landry’s, Inc. , 631 S.W.3d at 47 (internal citation omitted). But attorney immunity only applies “when attorneys act in the uniquely lawyerly capacity of one who possesses the office, professional training, skill, and authority of an attorney.” Landry’s, Inc. , 631 S.W.3d at 47 (internal citation omitted). Because “publicizing a client’s allegations” through press releases, press statements, or social media posts are not “actions of lawyers acting in [a] lawyerly capacity,” attorney immunity does not shield attorneys from liability for these kinds of actions. Landry’s, Inc. , 631 S.W.3d at 52.

[PJC 110.10–110.14 are reserved for expansion.]

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