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Feb 13, 2014

Lawyers in the Vortex: When Attorneys Become Public Figures

 cross posted at the Digital Media Law Project
 There was substantial media coverage of the defense verdict in the recent "twibel" (i.e., libel via Twitter) case against singer Courtney Love. Although the case attracted attention for the medium in which the allegedly defamatory statements were made, the dispositive issue was a long-standing element of libel law that did not depend on Love's use of Twitter.  Specifically, the jury found that plaintiff Rhonda Holmes, a lawyer who briefly represented Love in disputes stemming from the estate of Love's husband Kurt Cobain, had not proved the degree of fault on Love's part necessary for Holmes to win the case.

Curiously, the level of fault that the court required Holmes to prove was "actual malice," i.e., knowledge on Love's part that the statement was untrue, or reckless disregard by Love for whether it was true or not. Under U.S. Supreme Court precedent, the actual malice standard is applied when the plaintiff is a public figure.

There are two types of public figure plaintiffs: "general purpose public figures," who are so prominent and well known that they are public figures for all purposes; and "limited purpose" or "vortex" public figures, who become -- usually voluntarily -- involved in a particular public issue to the extent that they become public figures for statements regarding that public issue, but not for other matters. If a plaintiff is neither of these types of public figure, then s/he is considered a private figure, who does not have to meet the stringent standard of actual malice. (Private figure plaintiffs must still demonstrate fault on the part of the defendant in order to win a defamation case, but the specific level of fault that a private figure plaintiff must show varies from state to state.)

Meanwhile, the District of Columbia's Court of Appeals is facing a similar issue in another case involving a lawyer as defamation plaintiff. In that case, the court is considering the attorney's status in connection with a decision as to whether her suit against anonymous Wikipedia editors should be blocked under the District's anti-SLAPP statute.

We are used to the idea of celebrities and government officials being treated as public figures, but should their attorneys fall into that category as well? As it turns out, courts have long struggled with the question of when an attorney's involvement in a prominent case or controversy makes him or her a public figure in the defamation context; this post examines some of these decisions.

U.S. Supreme Court

The U.S. Supreme Court has considered three cases in which a lawyer's involvement in a prominent case led to questions about the lawyer's status as a defamation plaintiff. In all three cases, the Court held that the lawyer was not a public figure.

In Time, Inc. v. Firestone, 424 U.S. 448 (1976), the Court held that a lawyer who was a prominent member of local society did not become a public figure due to his divorce by a court in Palm Beach, Florida. The Court found that the plaintiff did not voluntarily choose to make aspects of his life public by electing "dissolution of a marriage through judicial proceedings," since the court procedure was required for the divorce, and that the divorce itself was not a public controversy which made the plaintiff a public figure.
Similarly, the Court held in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) that a lawyer who represented a convicted criminal on appeal was not a public figure. In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that the lawyer for a family involved in controversial civil litigation was not a public figure.

But since determinations of public or private figure status are highly fact-specific, these decisions are not necessarily determinative in subsequent cases. So state courts and lower federal courts have issued a variety of rulings on the public or private figure status of lawyers who are plaintiffs in defamation cases.

Involvement in Prominent Litigation

Despite the U.S. Supreme Court rulings in Rosenbloom and Gertz, other courts have held that an attorney's representation of a party in a prominent case can, under certain circumstances, justify a finding that the lawyer was a public figure.
  • In Della-Donna v. Gore Newspaper Co., 489 So. 2d 72 (Fla. App. 1986), the Florida Court of Appeals held that an attorney involved with a millionaire's estate became a limited public figure when a bequest to a university became a public controversy.
  • In Ratner v. Young, 465 F. Supp. 386 (D.V.I. 1979), a federal district court held that defense attorneys in a highly publicized murder trial were public figures because they had come to the Virgin Islands from New York to represent the defendant for free, thus injecting themselves into the case, and held press conferences to generate support for their client.
  • Similarly, in Hayes v. Booth Newspapers, Inc., 97 Mich. App. 758, 295 N.W.2d 858 (1980), a Michigan appellate court held that an attorney who had turned a criminal trial in which he represented the defendant into a cause célèbre was a public figure.
  • In Bandelin v. Pietsch, 98 Idaho 337, 583 P.2d 395 (1977), a lawyer prosecuted for contempt of court stemming from a probate matter was held by the Supreme Court of Idaho to be a public figure in a subsequent libel suit over coverage  because of the prominence of that prosecution.  The Idaho court discounted the lawyer's prominence in local politics several years before as a factor, after which he had gone into relative obscurity.
Public figure status due to involvement in a prominent case does not necessarily last forever, however. In New York, a lawyer who once represented a notorious criminal was held to not be public figure years after the representation. Polakoff v. Harcourt Brace Jovanovich, Inc., 3 Media L. Rep. 2516, aff’d, 67 A.D.2d 871, 413 N.Y.S.2d 537 (N.Y. Sup. Ct., App. Div. 1st Dept. 1979), appeal dismissed, 48 N.Y.2d 714, 422 N.Y.S.2d 378, 397 N.E.2d 1182 (1979).

Other courts have held that a lawyer's involvement in a prominent case did not, in itself, make the lawyer a public figure. The Michigan Supreme Court took this stance regarding an attorney in a publicized criminal trial, Peisner v. Detroit Free Press, Inc., 364 N.W. 2d 600 (Mich. 1984), as did the Arkansas Supreme Court is a case involving a lawyer who represented a witness in the 1990s “Whitewater” investigation, Little Rock Newspapers v. Fitzhugh, 330 Ark. 561, 954 S.W.2d 914 (1997). Even a prominent lawyer such as Gerry Spence, who advocated for famous and controversial clients, can be a private figure. Spence v. Flynt, 816 P.2d 771 (Wyo. 1991).

Involvement in Political and Public Controversies

Lawyers who work for the government -- as judges, prosecutors and public defenders, for example -- have often been held to be public officials who must show actual malice in a libel suit. But non-government attorneys have also been held to be public figures due to their involvement in political issues, at least for purposes of the specific public issue in which s/he was involved.

Thus a former city attorney and counsel for a local redevelopment agency who had initiated a recall of local public officials was found to be a public figure. Weingarten v. Black, 102 Cal. App. 3d 129, 162 Cal. Rptr. 701 (Cal. Ct. App. 1980). So was a prominent private lawyer who represented many public school districts. Schwartz v. Worrall Publications, Inc., 258 N.J.Super. 493, 610 A.2d 425 (1992).

A politically connected law firm was held to be a public figure when the firm sued a county legislator who accused it of over-billing the county and trying to hide a county official's miscounduct. Crowe Deegan v. Schmitt, 12 Misc. 3d 1152(A), 819 N.Y.S.2d 209, 2006 NY Slip Op 50870(U) (N.Y. Sup. Ct., Nassau County Apr. 14, 2006) (unpublished), aff'd and modified in part on other grounds, 38 A.D.3d 590, 832 N.Y.S.2d 242 (N.Y. Sup. Ct., App. Div. 2d 2007).

But some courts have ruled the other way. In ZYZY Corporation v. Gloria Hernandez, 345 S.W.3d 452 (Tex. App.—San Antonio 2011), a lawyer who spoke publicly as representative of an Indian tribe, which client constituted 10 percent of her business, was held not to be a limited purpose public figure. 

Involvement in Other Legal Matters

While an attorney's involvement in a prominent legal case can be sufficient to make the lawyer a public figure, courts have not generally held that attorneys' involvement in other legal matters gives them public figure status. 

Accordingly, in Denny v. Mertz, 100 Wis. 2d 332, 302 N.W. 2d 503 (Wis. Ct. App. 1981), aff'd, 106 Wis. 2d 636, 318 N.W.2d 141 (Wis. 1982), an attorney who thrust himself into the forefront of a corporate stockholder battle was held to not be a public figure because the corporate matter was not a public controversy which affected the “general public or some segment of it in an appreciable way.”

This also applies to administrative matters regarding attorney admission and discipline. Controversy over a lawyer's suspension and subsequent taking of the bar exam for re-admission to the bar was not sufficient to make the attorney a public figure in Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W. 2d 933 (1983). Neither was discipline of an attorney for practicing law in violation of his probation. Littlefield v. Fort Dodge Messenger, 614 F.2d 581 (8th Cir. 1980). 

Local Prominence

Aside from being involved in a prominent case, a lawyer -- like any other member of the public -- can become a public figure by his or her general prominence in the community.

In Durham v. Cannan Communications, Inc., 645 S.W.2d 845 (Tex. Civ. App. -- Amarillo 1982, writ dismissed), the court held that whether a lawyer's notoriety in the community made him a public figure was an issue for the jury to decide. Other courts have been more certain. In Partington v. Bugliosi, 825 F.Supp. 906 (D. Haw. 1993), aff’d on other grounds, 56 F.3d 1147 (9th Cir. 1995), the court held that a well-known criminal defense lawyer was a public figure. The court in Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979), held a lawyer to be a public figure because of his prominence as a social activist.
Public figure status for a prominent attorney can also last for some period after the prominence recedes. In Lewis v. Coursolle Broadcasting of Wisconsin, Inc., 127 Wis.2d 105, 377 N.W. 2d 166 (1985), the court held that an attorney and former legislator who was still well-known in the community three years after leaving office remained a public figure.

Lawyers as Public Figures

Lawyers tend to be prominent in their communities, and are likely to be held to be public figures if they are are involved in local politics or community efforts. But in most situations, an attorney's representation of a client in a prominent case is not, in an of itself, sufficient to make the attorney a public figure.

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