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From the Winter 2005 issue of The News Media & The Law, page 16. by Gregg Leslie Even as the…

From the Winter 2005 issue of The News Media & The Law, page 16.

by Gregg Leslie

Even as the U.S. Supreme Court is being asked to overturn a Pennsylvania Supreme Court case rejecting the neutral reportage privilege (see previous story), another decision by the same court on the same day may have an even greater impact on the news media’s access to court information. But at first glance the decision would seem more relevant to fox hunts than to the news media.

In Bochetto v. Gibson, the court increased the liability attorneys face when they share pleadings with reporters &#151 even though the papers are filed with the court and available from the court clerk.

The Pennsylvania Supreme Court ruled in October that the normal “judicial privilege” that covers such filings &#151 which was designed to ensure that litigants and their lawyers can talk honestly and openly in court without fear of being sued over the contents of their filings &#151 does not apply when an attorney hands those filed papers to a reporter.

The ruling allows George Bochetto, a lawyer who once represented a fox hunting organization in a land dispute, to proceed with his defamation lawsuit against Kevin Gibson, another lawyer who subsequently represented the same hunt in filing a legal malpractice claim against Bochetto.

According to the state high court’s summary of the case, the litigation started when Bochetto was hired to defend the Pickering Hunt against two lawsuits meant to keep it from using land owned by a family trust. The hunt lost the suits, and hired Gibson.

Gibson’s malpractice complaint alleged that Bochetto had not shown his clients a hired expert’s initial report on their lawsuits, which found potential problems with the hunt’s easement for access to the land, and suggested the easement’s value was lower than the organization expected. The expert also concluded that Pickering Hunt had a 5 to 10 percent chance of prevailing in the case.

According to the complaint, Bochetto then had the expert rewrite the report, leaving out the easement problems and the chances of success, and inflating the value of the easement, thereby leaving the Pickering Hunters feeling good about their chances and justified in fighting for the easement.

Bochetto vehemently disagreed with the allegations, alleging they were intentional falsifications meant to embarrass him and his firm into a settlement. In a typical situation his only course of action would be simply to respond to the complaint &#151 there would be no grounds for suing the hunt or its attorney for defamation because the allegations were made as part of an official proceeding.

But Gibson had done something else. Sometime after filing the malpractice complaint, he faxed it to a reporter with a Philadelphia daily newspaper, The Legal Intelligencer, which ran a story on the case.

That fax changed everything in the state Supreme Court’s eyes. After the case was dismissed by a trial court and a mid-level appellate court because of the judicial privilege, the high court decided that giving the document to the reporter constituted a separate “communication” of the defamatory allegations. And because that communication was not part of the judicial action, the court reasoned, there was no privilege.

The cases it relied on to defend this proposition, however, all involved an attorney who had spoken about the claims in the filing, even if only to repeat what was in the complaint, or had actually communicated additional information. (Indeed, in most states, an attorney who comments on allegations in a filing in any way that adds to those statements would lose the protection of the privilege, although each state’s interpretation of the judicial privilege and exactly what is covered is different.)

But none of those previous decisions make that extra leap of saying that providing a copy of a document is a communication that differs substantially from filing the document.

So the case will go back to trial as a standard defamation case, with no privilege for statements made in a judicial document.

It’s worth noting that it’s the attorney who faxed the papers who has to worry about a defamation trial. The newspaper and the reporter were not sued, and even if they were, they could still rely on the privilege, because they were reporting on a document filed in a legal proceeding.

The Pennsylvania Supreme Court acknowledged this, writing that this decision will not burden newsgathering and rejecting the trial court’s decision that it could not ignore the “chilling effect” this added liability would have on reporting on the legal system.

And that is what makes the court’s holding so absurd. Somehow, the lawyer’s act of passing a privileged document along became a nonprivileged communication, and the fact that it affects how attorneys speak publicly was of little concern to the court. The inability to get information directly from an attorney was treated as a mere inconvenience for the news media, rather than an impediment to reporting on the judicial system.

Because obtaining the document directly from the court doesn’t raise the same issues, it’s hard to figure out what this extra newsgathering hurdle really accomplishes.

What this decision inhibits, however, is easy to see. Lawyers must be much more careful in their communications to the media, and probably won’t feel free to pass on any of the documents they previously would have if there’s a chance that any allegation in the document could arguably contain a false statement of fact. In fact, they will probably feel much less free to discuss a case with a reporter at all, leading to less information for the public on what transpires in its courts.

Reporters outside of Pennsylvania may start to notice the effects of this case, as lawyers are by training a cautious lot who don’t want to test the parameters of their own states’ privileges.

California reporters were threatened with the same predicament a decade ago. A state appellate court had held in a 1994 case, Shahvar v. Superior Court, precisely what the Pennsylvania Supreme Court did here. But the California high court decided not to hear the case, and a media effort to fight the restrictive Court of Appeal decision led the legislature to directly override the ruling in 1996 by amending state law to include such acts within the privilege.

Hopefully, journalists in other states will not have to go to the legislatures to clear up what should be a straightforward matter of privilege. But all reporters need to be aware that lawyers may be less inclined to help, and court controversies may become more difficult to cover.