Defense Digest

"Tell It To The Judge, Counselor, Not The Media"

We have all heard the old expression, "It’s not what you say; it’s how you say it." Media-savvy lawyers in Pennsylvania must now observe a corollary to that rule: "It’s not what you say; it’s to whom you say it." In Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004), the Supreme Court of Pennsylvania considered whether lawyers should be entitled to absolute immunity from defamation and related claims, based on the judicial privilege defense, when they provide reporters with copies of complaints they have filed that allege wrongful or negligent conduct by others.

The factual basis for the Court’s Bochetto decision began with two 1997 lawsuits, both of which named Pickering Hunt, a Pennsylvania non-profit corporation, as a defendant. Pickering retained George Bochetto, Esquire to defend it in these actions, which related to Pickering’s interests in certain Chester County real estate. The two suits were consolidated for a non-jury proceeding in which the Chester County Court found in favor of the plaintiffs and against Pickering.

Following issuance of the trial court’s decision, Pickering hired another attorney named Kevin W. Gibson, Esquire to prosecute a legal malpractice claim against Bochetto and his law firm. Pickering contended that Bochetto withheld relevant information about Pickering’s chances for success in the underlying litigation from the corporation’s decision-makers and that he specifically failed to disclose certain unfavorable opinions offered by the expert Bochetto retained to assist Pickering.

On October 1, 1999, Gibson, on behalf of Pickering, filed a malpractice complaint specifying the allegedly negligent and wrongful conduct of Bochetto and his firm. Shortly after the complaint had been filed, Gibson sent a copy to Donna Dudick, a freelance journalist and frequent contributor to The Legal Intelligencer, a daily legal publication which is circulated in the Philadelphia region. Dudick prepared an article for The Intelligencer that discussed the allegations set forth in the legal malpractice complaint. The article was published on October 20, 1999.

As a result of the article, Bochetto and his firm filed suit in the Philadelphia County Court of Common Pleas against Gibson and his firm. They asserted counts for defamation, commercial disparagement, and tortious interference with contract, specifically alleging that the malpractice complaint, filed by Gibson on behalf of Pickering, contained false and defamatory statements. Gibson and his firm filed a motion for summary judgment in which they asserted, among other things, that they were entitled to absolute immunity based on the legal defense of judicial privilege.

The Philadelphia Court of Common Pleas, in a detailed opinion authored by the Honorable Albert W. Sheppard, Jr., granted the motion, holding that Gibson’s act of sending Dudick a copy of the malpractice complaint was protected by judicial privilege because the complaint had been previously filed in the clerk’s office and was available to the public. On appeal, the Superior Court of Pennsylvania affirmed Judge Sheppard’s decision; however, the Supreme Court of Pennsylvania reversed the lower courts’ decisions, holding that the act of sending the complaint did not fall within the scope of judicial privilege.

The Supreme Court commenced its analysis by explaining that the judicial privilege defense immunizes a person from liability for "communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought." The Court further instructed that the judicial privilege defense was necessary to afford all persons. "however bold and wicked, however virtuous and timid," access to the courts to present their claims for adjudication without fear of liability for slander or libel.

The Court explained that Gibson’s act of filing the complaint against Bochetto and his firm was protected by judicial privilege because that "publication" was "a regular part of the legal proceedings" and was "pertinent and material to the proceedings." The Court opined, however, that although "the privilege protects the first publication [i.e., filing the complaint with the clerk’s office], [it] does not necessarily mean that it also protects Gibson’s later act of republishing the complaint to Dudick."

The Court concluded that "Gibson’s act of sending the complaint to Dudick . . . did not satisfy either of the[ ] requirements" mentioned above. The Court labeled it an "extrajudicial action" that occurred "outside of the regular course of judicial proceedings." The Court further explained that Gibson’s action was not relevant in any way to the legal proceedings. Accordingly, it held that Gibson and his firm were not entitled to absolute immunity for statements made in the legal malpractice complaint after Gibson provided a copy of that pleading to a member of the media. It is worthy of note, for future cases raising similar issues, that two of the six justices who considered Bochetto dissented from the decision of the Court’s majority and endorsed the lower courts’ conclusions.

For the present, the Bochetto decision underscores the wisdom exhibited by many law firms and insurance companies, which prohibit attorneys from promoting high-profile cases in the media. Although many lawyers like to try cases in the media, the Bochetto ruling may help to ensure that legal disputes are litigated in courtrooms, rather than extrajudicial fora, where appropriate rules of procedure and evidence do not exist to protect the parties’ interests.

*Doug is an associate in the firm’s Philadelphia, PA office. He can be reached at (215) 575-2698 or Dherman@mdwcg.com.