How the Depp-Heard verdict could affect professional liability
The apparent sole basis for the jury’s finding of liability against Depp was that his lawyer spoke about his case to the media.
While most commentators have focused on how the recent verdict in the matter between Johnny Depp and Amber Heard has impacted public perception of abuse allegations, the outcome has also been of interest to those focused on professional liability risks.
That is because the jury found Depp liable for defamation as a result of a statement in which his ex-wife’s abuse allegations were called a “hoax.” Notably, the evidence was not that Depp made that statement but that his lawyer made the statement when speaking to the media.
Here, the apparent sole basis for the jury’s finding of liability against Depp was that his lawyer spoke about his case to the media. Here are some tips for lawyers to avoid risk when acting on behalf of a client.
Be aware that attorneys are agents
It is well-settled that lawyers are agents of their clients. Depending on the scope of their retention or authority, lawyers may stand in their clients’ shoes for purposes of taking positions in litigations, making statements to courts or the media or waiving or enforcing a client’s rights.
Clients are often bound by acts of their attorneys, even if those acts were not specifically authorized, as long as the client appointed the lawyer as its agent for certain legal issues.
For example, if a lawyer accepts a settlement offer on behalf of a client, the client may be bound by that settlement even if the client did not specifically authorize it. When a client has obligations to communicate truthfully with a third party—such as the government or an insurer—and the client’s lawyer communicates with those third parties on the client’s behalf, the client is typically bound by those representations.
If a lawyer provides facts to an insurance company in support of a claim that are later proven false or misleading, the client’s insurance coverage will likely be at risk. A grant of agency to a lawyer for the purpose of communicating with the insurance company will often bind the client to those communications.
Acting without authority risks a claim
When a lawyer takes steps on behalf of a client, such as in the above-identified circumstances, the lawyer may be creating risk for the client. The risk for lawyers is that, if a client suffers an adverse result because of something the lawyer did on that client’s behalf, the client may make a claim against the lawyer.
Indeed, if a client is found liable for defamation or another tort solely because of comments made by their lawyer, that lawyer can consider whether to put their insurance carrier on notice (in anticipation of receiving a demand or claim). Similarly, for the client who is bound by a settlement that they later dispute, they may sue the lawyer and allege that the lawyer committed them to an outcome that they did not want.
Notably, the lawyer who purportedly made the actionable statements in the Depp matter was once counsel of record in the Virginia defamation case. However, his pro hac vice status was reportedly revoked for purportedly disclosing information to the press in violation of the case’s protective order.
It is not uncommon for courts to clamp down on lawyers who run afoul of existing protective orders, gag orders or the rules of professional conduct governing media interaction. For example, Georgia Rule of Professional Conduct 3.6 prohibits lawyers from making extrajudicial statements that the lawyer knows “will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”
It can create a risk for lawyers if they or their clients are on the receiving end of a judge’s ire due to their statements to the public.
What about ‘Me-Too’ statutory requirements?
Over the past several years and in response to current events, some states have enacted laws that prohibit litigants from keeping certain information confidential from the public. For example, California has enacted laws that do not permit litigants to enter settlements that keep confidential factual information relating to a claim alleging an act of sexual assault, sexual harassment or workplace discrimination or harassment based on sex.
California also generally prohibits employers from requiring employees to sign agreements that would prohibit those employees from disclosing information about unlawful acts in the workplace, such as sexual harassment.
Indeed, the Silenced No More Act applies to all forms of harassment in the workplace, including those based on race, religion or disability. Under these laws, confidentiality agreements can generally still protect a claimant’s identity or the amount paid, but may be invalid where they prohibit a claimant from discussing the wrongful conduct alleged.
These actions by legislatures reflected public outcry in the wake of acts of abuse by high-profile individuals becoming public. It was determined that public policy supported making facts regarding sexual assault or abuse public, to protect the citizenry at large and to hold powerful abusers accountable.
Some critics have observed that there can be a tension between these laws—which discourage confidentiality and suggest sunshine is the best disinfectant—and the risks that clients could be found liable for defamation based on comments made by their lawyers.
As lawyers familiarize themselves with the rules governing media communication, confidentiality and defamation, it can be helpful to keep these issues in mind both to support their clients and to reduce the risk of liability.
Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team and is co-author of “California Legal Malpractice Law” (2014).
Alanna Clair is a partner at the firm and focuses on professional liability defense.
Klevens and Clair are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”
The authors wish to thank Nicole Thrun for her assistance with this topic.