If You Can’t Say Something Nice, Then Don’t Say Anything

By Joe Murray 

An anonymous show of hands: who has done a local TV news segment in which you and your client discuss their lawsuit? Maybe you state the employer is racist or a specific manager was a predator. Now, a second show of hands: how many have considered the potential for such a statement to lead to a defamation lawsuit against you or your client? If not, I recommend that you do.

In January 2018, Cardinal Innovations Healthcare Solutions hired Kurt Meyers and McGuireWoods to conduct an independent internal investigation into the conduct of its former CEO, Richard Topping. After Meyers presented his findings to Cardinal, it filed a lawsuit against Topping seeking the return of a severance payment. Less than two hours after filing suit, Cardinal held a press conference at which Meyers discussed his findings with the media. Meyers’ statements and presentation at the press conference essentially “mirrored” the allegations in the complaint. Topping v. Meyers, No. COA19-618, (N.C. Ct. App. Mar. 17, 2020).

Topping then filed his own lawsuit against Meyers and McGuireWoods (“Defendants”) alleging several defamation claims based on Meyers’ statements at the press conference. Defendants moved to dismiss the case based on the absolute privilege of communications during judicial proceedings. As relevant to our hypothetical, the trial court denied the motion since Defendants’ speech occurred during a press conference and not in a courtroom. Defendants appealed.

The court of appeals first noted that attorneys are absolutely privileged to issue defamatory communications before, at the start of, and during a judicial proceeding “if it has some relation to the proceeding.” Turning to Defendants’ argument that the privilege extended to a press conference, the court of appeals upheld the denial of the dismissal, finding that the privilege did not extend to extrajudicial statements. The court of appeals agreed with Defendants that the privilege extended beyond the courtroom, but the extensions recognized by courts were logically and practically needed as part of the judicial process, such as interviews with witnesses and communications between parties or their attorneys. Since a press conference has no logical or practical relation to judicial proceedings, the privilege could not extend to statements made at a press conference.[1]

While there is almost no likelihood you will ever face a defamation suit after a press conference, you should still consider the potential implications before you call Ron Burgundy and the Channel 4 News Team. If you and your firm are personally sued, is there a conflict of interest with your client? See N.C. R. Prof. Conduct 1.7. If your client is sued for defamation, can you be on the hook for their costs and liability for advising them to go on the news segment? Cf. Fox v. Wilson, 85 N.C. App. 292, 299, 354 S.E.2d 737, 742 (1987). Sometimes the best response to a media inquiry is “no comment.”

 


[1] In good news for attorneys who perform investigations for clients, the court of appeals found no basis to support that the privilege is available only to litigation counsel. The court noted that “[p]reparation for litigation is as much the practice of law as is litigating the claims.” Because there is no distinction between litigation and investigatory counsel, the court of appeals found the trial court erred in making this distinction. Judge Brook did not join this section of the majority’s opinion.