Bochetto v. Gibson

Justice CASTILLE,

dissenting.

I believe that the trial judge, the Honorable Albert W. Sheppard, Jr., in his thoughtful and comprehensive opinion, decided this case correctly and thus, like the Superior Court panel majority, I would affirm his decision. Specifically, I agree with the lower courts that appellee Gibson’s conduct in providing a copy of his filed complaint to a legal media outlet is covered by the judicial privilege and is not actionable in defamation. Because the Majority Opinion concludes otherwise, I respectfully dissent.

*255The October 20, 1999 article published in the Legal Intelligencer, which formed the basis for appellants’ defamation complaint, contains factual background information concerning the litigation in which appellant George Bochetto, Esquire, had represented Pickering Hunt, and is then followed by a recitation of the allegations of the legal malpractice complaint which appellee Kevin Gibson, Esquire, filed on Pickering Hunt’s behalf against Bochetto and his firm. Each of the allegations is attributed to the complaint, not to Gibson, although both Bochetto and Gibson granted interviews to the author of the article. None of the comments attributed to Gibson relates in any way to the substantive allegations of the malpractice complaint against Bochetto. Rather, Gibson’s comments related to his claimed success rate in legal malpractice actions and his claim that most of his clients are referred to him by other attorneys. Gibson also remarked that “the lawyers that yell the loudest about being sued are usually the most guilty,” an intemperate and gratuitous comment unbecoming a legal professional for sure, but one which merely expressed Gibson’s opinion about the defendants in his cases generally, did not relate specifically to Bochetto, and did not touch upon the substance of the legal malpractice complaint. Thus, the sole information upon which Bochetto’s defamation action could be based was the information gleaned from the four corners of the malpractice complaint which Gibson forwarded to the reporter.

Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977) (en banc), appeal dismissed as improvidently granted, 487 Pa. 455, 409 A.2d 857 (1980), which is cited with approval by the Majority here, is indeed instructive, as it involved a similar circumstance and divided the Superior Court. Barto involved the immunity available to “high public officials,” as that immunity concerned the statements of a public defender who was representing a defendant who had been convicted of murder. After filing a brief in the case, the public defender called a press conference at which he related the contents of the brief. The brief contained statements about state police officers who had been involved in the investigation of the murder, and at *256least two newspapers published the substance of the public defender’s remarks. The police officers then sued the public defender, claiming that his comments had defamed them. The trial court, ruling on the public defender’s preliminary objections, found that the public defender was a “high public official” and, therefore, entitled to absolute immunity for comments made in his official capacity, whether defamatory or not. Because the court found the public defender’s remarks to be closely related to his official duties, the court found that the remarks were entitled to protection. The court also held that the public defender was absolutely privileged to repeat matters which were of public record.

The Superior Court, by a 4-3 vote, reversed, with the majority finding that the public defender was not entitled to the absolute immunity applicable to a “high public official” but, rather, that his privilege was the qualified privilege extended to any attorney to publish information relative to a judicial proceeding. Therefore, the majority held, the police officers were entitled to the opportunity to prove that the public defender’s comments were known by him to be false or were made in reckless disregard of the truth in order to defeat the qualified privilege.

Judge Spaeth authored a lengthy dissent, which was joined in its entirety by Judge Jacobs and in part by Judge Hoffman. The dissent first concluded that the absolute privilege afforded to “high public officials” should extend to the public defender. In the alternative, the dissent concluded that the public defender should be deemed entitled to absolute judicial immunity, which is based not on “the status of the speaker but on whether the statements were made in the context of a judicial proceeding.” 378 A.2d at 935 (footnote omitted). The dissent reasoned that the public defender’s statements in this case were covered by this privilege because he had done nothing more than reiterate what he had already said in the post-conviction brief which had been filed:

Shortly before the statement [the public defender] had filed a brief with the lower court in support of his client’s post-conviction petition. The lower court has found in its opin-
*257ion, and it is not disputed by appellants, that the statements “(were) no more than a reiteration of the contents of that Brief.” ...
There is no question that the privilege extends to the brief itself; it was filed with the court in a pending proceeding, and allegations of impropriety on the part of investigating law enforcement officers are relevant to a challenge of a murder conviction.... There is also no question that the newspaper reports of [the public defender’s] statements were themselves not actionable; they were reporting a noteworthy development in a case of wide community interest.... The sole question is whether [the public defender’s] “reiteration of the contents of (his) (b)rief’ may form the basis of a defamation action. The majority holds that the reiteration amounted to a “republication” of the privileged statements in the brief, and since this was outside the scope of the judicial proceedings, the privilege was lost. Concededly, the majority’s position is supported by precedent in other jurisdictions, [citing cases].
However, I am of the opinion that at least in this case those precedents should not be followed. Since the statements could properly be made in the brief and in the newspapers, it is the act of supplying the statements in the brief to the newspapers that is held impermissible. However, once filed with the court, the brief was public information. (There is no indication that any “gag orders” were imposed upon the parties by the court.) The newspapers presumably could have asked the Prothonotary to permit them to see the brief, or they might have asked [the public defender] to give them a copy, which he might have done without making any comment. As I understand the majority’s reasoning, both of these hypothetical situations would be considered prohibited republication. To me, however, they both represent legitimate methods of furnishing to the public information that is of record and both are indistinguishable from the present case. I would therefore con*258strue the privilege to include [the public defender’s] activity here.

Id. at 936 (footnotes and citations omitted).

I am persuaded by the reasoning of the Barto dissent and would adopt it as the proper manner of approaching cases where, as in the case sub judice, the alleged defamation arises from the mere act of providing a copy of a filed judicial pleading to a third party. I recognize that there is a distasteful element of self-promotion at work when a Pennsylvania lawyer contacts a reporter in hopes of publicizing his case, and thereby his business. But the focus should be upon substance. Where the alleged defamatory aspect of the “contact” consists only of what is contained within the four corners of.a record judicial pleading, I see no principled distinction, for defamation purposes, between the filed public complaint and the copy of it provided to the press. Here, Gibson did not make any published comments about the contents of the malpractice complaint he filed; he merely provided a copy of a public record to the reporter. As the Barto dissent similarly recognized, the reporter could just as easily have secured a copy of the malpractice complaint at the courthouse. Gibson provided nothing of substance to the reporter that was not already readily available directly from the court. As the complaint was filed in the course of a judicial proceeding, I would hold that the judicial privilege, and the important policies it promotes, see Majority slip op. at 5-6 (discussing Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 355 (1986)), immunize Gibson from liability for the substance of the statements made in that complaint.

I emphasize that, had Gibson made comments to the newspaper reporter that elaborated on the allegations of the complaint in a fashion that could be deemed defamatory, those comments would not be covered by the privilege.1 But, he did not and, because what was published in this case concerning *259the legal malpractice action derived from the four corners of the filed complaint, it was, in my view, privileged. As I would affirm the courts below, I respectfully dissent.

Justice BAER joins this dissenting opinion.

. I should note that I do not condone the confrontational and self-promoting comments that Gibson made to the reporter, and I am distressed that a member of the bar would resort to the same. Pennsylvania attorneys should aspire to higher standards of conduct. Nevertheless, those comments are not actionable in defamation.