Richmond on Lawyers' Rare Privilege of Litigating in the Media @PennStLRev

Douglas R. Richmond, Lockton Companies, LLC, is publishing Lawyers' Rare Privilege of Litigating in the Media in volume 128 of the Penn State Law Review (2024). Here is the abstract.

Conventional wisdom holds that high-profile litigation is often decided both in court and in the court of public opinion, and that harnessing the power of the press is an essential aspect of a comprehensive legal strategy. How the media reports on litigation is thought to affect the resolution of disputes. As important as a media strategy arguably may be in some cases, however, lawyers’ advocacy for clients in public forums exposes them to serious professional risk. That risk may at first seem minimal. After all, lawyers enjoy a litigation privilege that generally provides them with absolute immunity against tort liability for statements made in the course of judicial proceedings in which they serve as counsel so long as the statements relate to the proceedings. In addition, lawyers normally are protected against liability to third parties—that is, to non-clients—by the doctrine of attorney immunity. When lawyers speak with the press or provide information to the media, however, the litigation privilege rarely shields them against defamation allegations or other tort claims arising out of those communications. Attorney immunity is also unlikely to protect lawyers who litigate their cases in the court of public opinion because communicating with journalists generally does not involve a lawyer’s office, professional skill, training, or authority. Anyone can publicize a party’s claims or defenses in the media. This Article examines the application of the litigation privilege and attorney immunity to lawyers’ advocacy for their clients in the media. In light of the rarity with which lawyers can invoke these defenses to lawsuits against them arising out of their media activities, the Article further outlines alternative defenses available to lawyers who are sued as a result of litigating their clients’ cases in the court of public opinion.

Download the article from SSRN at the link.