That was the question raised in ZYZY Corporation v. Gloria Hernandez, No. 04-10-00311-CV (Tex. App.—San Antonio Jan. 26, 2011). And it’s one that should interest lawyers with newsworthy cases and newspaper reporters alike (and, of course, the law bloggers who live in both worlds).
The plaintiff in this libel case is Gloria Hernandez, a lawyer who represented the Kickapoo Traditional Tribe of Texas over several years. On April 26, 2006, she testified at a hearing in tribal court. When asked how much of her legal practice involved work for the Tribe, Hernandez testified “I make roughly about ten percent of my income from the tribe.”
The next day, the local newspaper Eagle Pass News-Guide (owned by ZYZY) reported this:
The most damning of testimony came when Hernandez admitted on the stand that she rakes off a 10% share of Lucky Eagle Casino profits for her services to the handful of remaining Kickapoo insurgents. This admission is a clear cut violation of National Indian Gaming Commission rules and regulations which require approval of any management contract by an outsider hired to oversee an Indian casino operation. And Hernandez leaves little doubt she intended to defraud to [sic] the federal governmental agency when she has never listed herself as anything but a legal representative to the Kickapoo Tribe of Texas.
A year later, this lawsuit was filed. (( This appeal also involved a statute-of-limitations question that’s perhaps of less interest to readers. If you worry that a local holiday that leads to a court closing won’t extend the deadline — here, the courthouse was closed for “Battle of Flowers” holiday festivities — then this case should allay your fears. )) Among other arguments, the newspaper sought summary judgment on the ground that Hernandez was a limited-purpose public figure and, thus, would have to show “actual malice” to prove libel. The trial court disagreed, and the newspaper filed the interlocutory appeal permitted by Texas law. Tex. Civ. Prac. & Rem. Code §51.014(a)(6).
The newspaper’s primary argument was that Hernandez, through her role with the Tribe, had injected herself into the dispute itself to become a limited-purpose public figure. There is a three-part test under Texas law:
(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy; and
(3) the alleged defamation must be germane to the plaintiff’s participation in the controversy.
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The court of appeals focused on the second element, Hernandez’s role.
As the court of appeals framed the newspaper’s argument: “ZYZY contends Hernandez played more than a trivial or tangential role in the dispute because she injected herself into the controversy beyond her role as an advocate for one side.” As support, the newspaper introduced a significant number of newspaper articles from the time period — both from its own archives and from nearby newspapers — which cover the Tribe and mention Hernandez by name. But at oral argument, we are told, “counsel for ZYZY acknowledged that the Eagle Pass papers’ reporting alone could not make Hernandez a public figure.”
The newspaper also relied on Hernandez’s testimony about her role with the Tribe, which apparently involved speaking with public officials on the Tribe’s behalf. The court of appeals was not impressed: “We hold that merely accompanying a client to meet with elected officials to discuss matters of importance in his district or to meet with representatives of agencies that have some oversight authority over the lawyer’s client does not make a lawyer a public figure.”
And the newspaper pointed to other newspaper articles (including from other publishers, such as the San Antonio Express-News and Dallas Morning News) in which Hernandez had been quoted by name. After examining those articles, the court of appeals concluded that the way she was quoted suggested only that she was “responding to press inquiries regarding legal matters affecting the tribe.”
Having walked through the newspaper’s summary-judgment evidence, the court of appeals held that it
does not show that [Hernandez] became involved in the controversy regarding the tribe leadership beyond her role as a legal advocate, that she thrust herself into the public eye by engaging the media, had any special access to the media, or that she used the media in an attempt to influence the outcome of the controversy. On this record, we cannot say that ZYZY established as a matter of law that Hernandez is a limited-purpose public figure.
Hat tip: “Newspaper in the Hot Seat for Hatchet Job on Lawyer” (Courthouse News Service)
3 responses so far ↓
1 Gritsforbreakfast // Feb 2, 2011 at 8:56 am
Wow, I find it hard to understand how someone who’s a paid advocate on a case is not a public figure when the case makes the news. The attorney was hired to represent and advocate for a client in a public forum. That is not a “trivial or tangential role” in the dispute, it’s a central one.
2 Don Cruse // Feb 2, 2011 at 10:06 am
Scott,
I can see some differences between the advocate’s role in the courtroom (which is open to the public, yes, but is also a space in which witnesses speak and jurors sit in a box, actually deciding a case, presumably without becoming “public figures”) and the lawyer’s occasional advocacy role outside the courtroom.
(You mention that the lawyer was “a paid advocate.” Is that a surplus word, or would you really feel differently about a lawyer who takes a civil rights case pro bono? Or a lawyer who is appointed by the court to handle a high-profile murder case for an indigent?)
My gut tells me that any workable test has to focus on the nature of the lawyer’s role and not her title or paycheck — and that it will be more protective of advocates than you (as a member of the press) might like. Texas law already protects statements made in the course of litigation from slander or libel suits. With that in mind, I wouldn’t be surprised at a holding that an attorney’s role as courtroom advocate does not change her status for libel law. As for advocacy outside the courtroom or answering a reporter’s questions….
Do reporters really want a rule, Scott, that says if a lawyer takes your call directly and answers your press inquiries helpfully, that he transforms himself into a public figure for libel purposes? Why wouldn’t he then pass you along to a PR person?
Maybe you’d take that, on balance. It’s a complex set of concerns, which is why I thought it was a particularly blog-worthy court of appeals opinion.
3 Gritsforbreakfast // Feb 2, 2011 at 2:02 pm
“Is that a surplus word, or would you really feel differently about a lawyer who takes a civil rights case pro bono?”
Not a surplus word at all. Even in pro bono cases there’s a recognition that one is providing services that merit payment, but you’re doing it for free. In fact, in pro bono cases IMO you’d be MORE likely to be considered a public figure because the act of working without a fee would show tacit support for the “cause.”
Also, I don’t want or need the imaginary rule you suggest about talking to the press because to me, the lawyer is a public figure whether they answer my questions or not because of their role in the courtroom. The issue is more fundamental than their choice about whether to talk to the press.
The “nature of the lawyer’s role” is that they chose to stick their neck out in their client’s dispute, which that person has chosen to take into a public setting regularly covered by the press. Witnesses, jurors, etc., who as you say may not necessarily be public figures, were all compelled to be there, but not the advocate. That person chose their profession and made a conscious decision to put themselves into that public space, either for pay or in support of a cause, in a way that to me inherently makes them a public figure if the case is newsworthy, precisely because of the “nature” of their role.
Basically, in this case a cub reporter at a podunk paper made a sloppy, rookie error and the lawyer wants a payday from it. But giving it to her will diminish courtroom reporting, which you’ll surely agree is already in a pretty sad state as it is. All writers make errors, and when there’s no malice and they’re reporting on public events, IMO it harms public discourse to make that the standard. The appeals court is basically saying the press can’t report on the courts at all because if they make an error a lawyer can sue. That’s BS.
Finally, I’m not sure why it matters that “Texas law already protects statements made in the course of litigation from slander or libel suits.” We’re talking here about the opposite situation, where the lawyer wants to sue the paper, not somebody suing the lawyer.
Now you’ve got me ginned up over this and I’ll have to go read the opinion. We may not agree on this, but you’re right it’s an especially blogworthy opinion.