Last month, I served on a panel for the State Bar of Texas Environmental Law Superconference, which focused on an important recent decision by the Texas Supreme Court. In Landry’s Inc. and Houston Aquarium, Inc. v. Animal Legal Defense Fund (No.19-0036), Texas’ highest court provided a memorable example of the interaction of law and ethics rules.  This case arose under a dispute involving the Endangered Species Act, but the principles announced by the Court apply to lawyers generally. It is not limited to environmental actions, but it is important for environmental lawyers to know about.

The Texas Supreme Court is, of course, the ultimate authority on the meaning of the Texas common law and the governing authority of the legal profession in Texas. The decision is important for Texas lawyers and lawyers everywhere because of its explanation of the application of defamation law in the context of media and press statements and extra-judicial disseminations of a statement regarding opponents. The court rejected an opportunity for extension of the legal proceedings privilege.  This holding is consistent with other states that have defined the scope of lawyer immunity for defamation.  The interaction and interrelationship of the common law, statutes, and ethics principles are important in today’s broad ranging and interstate practice. The application of positive law can be found efficiently by research in the Restatement of the Law Governing Lawyers

The state Rules of Professional Conduct operate in conjunction with common law and statutory rules relevant to lawyers.  Compliance with law is a duty of each person, including lawyers. Lawyers may sometimes forget the existence of their own accountability under the law. The lawyer who comes to regard herself as part of the machinery of legal representation runs the risk of ignoring the issue of their own liability.  If a lawyer joins the client in defrauding a third party, both the client and the lawyer are subject to the common law of tort.

The first section of the Restatement (Third) of the Law Governing Lawyers states the point: “Upon admission to the bar of any jurisdiction, a person becomes a lawyer and is subject to applicable law governing such matters as professional discipline, procedure and evidence, civil remedies, and criminal sanctions.”  The Restatement and the common law make clear that lawyers do not have special dispensation or “a free card” to disregard the law except in cases in which the law specifically provides for immunity.  Restatement (Third) of the Law Governing Lawyers § 56 states that unless an exception applies a lawyer is “subject to liability to a client or nonclient when a nonlawyer would be in similar circumstances.” 

Some exceptions to this accountability are necessary to protect our system of justice.  For example, the privilege to publish information related to a proceeding protects the legal process; it protects lawyers against defamation when they publish information in relation to a cause of action. Thus, a lawyer is protected against a claim of defamation when she provides information to someone related to a case and she is serving as counsel in the case publication. This immunity protects lawyers against statements about a nonclient. 

The Landry’s case arose from a dispute related to an exhibit of four white Bengal tigers.  Landry’s operates an aquarium in downtown Houston, where it has four white Bengal tigers. The aquarium is licensed by the USDA.  In 2016, the Animal Legal Defense Fund (ALDF) and its lawyers sent a letter notifying Landry’s of its intent to sue and its allegations that Landy’s was in violation of the Endangered Species Act (ESA) for the conditions it provided for the endangered tigers. Among other claims, ALDF alleged a potential criminal violation of the ESA. Additionally, ALDF posted a press release on its site with the allegations from its notice letter to Landry’s.  ALDF and its lawyers sent the release and the letter to press outlets in Houston and Denver and posted items on their websites and social media such as Twitter and Facebook. These postings repeated and amplified the press coverage of ALDF’s allegations.   The Texas court recognized the general common law protection against defamation for lawyers, but it also held that lawyers who made statements in a press release to the public were not entitled to this immunity.

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