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Georgia Court of Appeals judges misread Atlanta Journal-Constitution articles that Franklin R. Nix claimed libeled him as a “rogue lawyer,” the Georgia Supreme Court ruled. At oral arguments in November, Nix’s lawyer, Nelson O. Tyrone III of Atlanta-based Garland, Samuel & Loeb, maintained that the newspaper unfairly had placed his client in the company of arrogant, homicidal, ham-handed, thieving lawyers. He asked the justices to uphold an appeals court decision that might have sent the case to trial. But a unanimous state supreme court released a decision Monday disagreeing with Tyrone and the lower court. Justice Robert Benham wrote the decision, in which all the justices concurred except Carol Hunstein, who was disqualified from the case. “After careful consideration of the articles on which the suit is based, we cannot agree with the Court of Appeals that a jury question is presented in this case,” Benham wrote. “The sole reference to Nix was a report on a judicial proceeding and was, as the Court of Appeals noted, substantially accurate.” Cox Enterprises v. Nix, No. S01G0743 (Sup. Ct. Ga. Feb. 25, 2002). Dow, Lohnes & Albertson partner Peter C. Canfield, who represented The Journal-Constitution, praised the court’s decision and its reading of the piece in question. “The article says what it says,” Canfield says. “It doesn’t say that Nix is a criminal rogue lawyer.” That an article discusses criminal activity on some people’s part doesn’t bar it from discussing noncriminal activity by someone else in the same piece, Canfield says. TWO-STORY PACKAGE Nix’s complaint stemmed from a two-story package by reporters Charles Walston and Bill Rankin in the March 9, 1997, edition of The Journal-Constitution. The stories examined an initiative by the State Bar to tighten standards of lawyer conduct, and ran under the headline: “Rogue Lawyers: Who Polices Them?” The account described several examples of lawyer misbehavior, including bounced checks, forgery and murder. The paragraphs on Nix came from the transcript of a December 1996 hearing before Fulton County, Ga., Superior Court Judge Wendy L. Shoob. Louis Levenson, of Levenson & Associates, sued Nix for defamation and tortious interference with business contracts. Levenson was organizing a class action suit against the city of Atlanta on behalf of several Olympic Games vendors, and Nix had sent a letter to one of his clients, trying to recruit him for a rival action. During the proceeding, Levenson asked the judge for a restraining order barring Nix from contacting Levenson’s clients. Shoob chastised Nix for his behavior, and issued the restraining order. Levenson’s suit was dismissed without prejudice in 1999. Nix complained that the newspaper’s account didn’t include his explanation to the judge that he had sent the letter because of a clerical error. PAPER SUED IN ’98 Nix sued the newspaper March 9, 1998, but Senior State Court Judge Charles L. Carnes granted Cox’s motion to dismiss on the pleadings that summer. However, the Court of Appeals overturned Carnes’ order. Writing for a unanimous panel comprised of Judges Anne E. Barnes and G. Alan Blackburn, Judge Frank M. Eldridge wrote that the paper may have tainted Nix’s reputation by including a reference to his noncriminal behavior with accounts of criminal activity by other lawyers. “[T]he question of whether the account was fair and honest was for the jury to determine,” he wrote. NOT A ‘CRIMINAL ROGUE’ However, the Georgia Supreme Court decision notes that only one of the two articles mentioned Nix, and that the whole package concerned nine lawyers, some of whom were not accused of any criminal behavior. The articles didn’t accuse any lawyer of being “a criminal rogue lawyer,” Benham wrote. And a transition before the piece’s discussion of Nix’s hearing before Shoob expressly allowed for noncriminal shenanigans. “[I]n the single article in which Nix was mentioned, only two lawyers were mentioned before him, only one of whom was accused of a crime, giving a bad check,” Benham wrote. “While the articles mentioned several more attorneys involved in or accused of misconduct, the overwhelming bulk of the articles was a discussion of the process of lawyer discipline.” After reviewing the articles, Benham wrote, the court held that the lower court’s reading of the piece was “not accurate.” Therefore, he wrote, the lower court’s judgment based on that reading was in error. “Since an erroneous interpretation of the articles as ambiguous was the central element in the decision of the Court of Appeals, it follows that the reversal of the trial court’s grant of summary judgment to Cox on the libel claim was error,” he wrote. COULDN’T PROVE FALSEHOOD Also, wrote Benham, the only part of the articles that referred to Nix came from the official transcript of a hearing. The court didn’t touch on the issue of the “Fair Report Privilege,” which allows reporters to publish accurate accounts of official government proceedings without fear of liability. But the decision did note that Nix could not prove an essential element of libel: falsehood. “Comparing the reference to Nix in the article to the transcript of the hearing leads us to conclude that Nix cannot prove the falsity of the article in its reference to him because the article accurately reflects what transpired at the hearing,” Benham wrote. This was the second time the Georgia Supreme Court considered this case. On its first trip, Nix had claimed that Carnes had converted the newspaper’s motion to dismiss into a motion for summary judgment, but hadn’t notified Nix of the change. The justices held that Nix had waived notice, and remanded the case to the Court of Appeals for ruling on the merits of the summary judgment order. Cox Enterprises v. Nix, 273 Ga. 152 (538 SE2d 49) (2000).

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