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A lawyer who sent a copy of a complaint to a newspaper may not claim an absolute judicial privilege to shield himself from liability in a defamation suit, a divided Pennsylvania Supreme Court ruled Thursday. A 4-2 court concluded that because faxing the document to a reporter was an “extrajudicial act that occurred outside of the regular course of the judicial proceedings and was not relevant in any way to those proceedings, it is plain that it was not protected by judicial privilege.” Excerpts from the legal malpractice complaint were reported in a suburban edition of The Legal Intelligencer five years ago after attorney Kevin W. Gibson sent the complaint to a reporter. A Philadelphia trial judge had found that Gibson was protected by the privilege, reasoning that a contrary finding would have a “chilling effect” on attorneys’ willingness to forward copies of pleadings to the press. The Superior Court affirmed the decision last year. Thursday, four justices disagreed. Although the refusal to apply judicial privilege in Bochetto v. Gibson “may inhibit the ability of the media to access the documents filed in a case,” Justice Russell M. Nigro wrote in a footnote of the majority’s opinion, “that problem is not one that the judicial privilege was designed to remedy.” Rather, Nigro wrote, “the privilege is only meant to promote the airing of issues and facts during judicial proceedings.” In the footnote, he added, “the media is not unduly hindered by our holding today as it may generally obtain copies of unsealed pleadings from the clerks of court where the pleadings have been filed.” In a caveat, Nigro noted that court clerks cannot be held civilly liable for lawfully distributing pleadings — an issue that was raised at oral arguments in April. Justice Ronald D. Castille wrote separately to dissent. “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,” wrote Castille, who was joined by Justice Max Baer. “But the focus should be on substance.” That is, Gibson didn’t comment on the contents of the malpractice complaint but merely provided the newspaper with what was available already directly from the court, Castille explained. When the alleged defamatory content consists “only of what is contained within the four corners of a record judicial pleading,” Castille wrote, “I see no principled distinction, for defamation purposes, between the filed public complaint and the copy of it provided to the press.” Robert S. Tintner, lawyer for Gibson and his former law firm Kasab Archbold & O’Brien, said the opinion means lawyers may be less willing to hand over court pleadings to reporters. “Most lawyers will be telling journalists, writers and reporters, ‘We can tell you where to get these documents but we can’t give them to you,’” said Tintner, an attorney at Fox Rothschild. “The best advice I can give is to tread carefully.” Robert Clothier, a First Amendment media attorney in Norristown said Thursday’s opinion would affect how both journalists and lawyers do their jobs. The court clerk’s office may be close to some reporters, but the distance, resources and money needed to get there and pay for copies of documents may prove too great for others. “As a result, some won’t report on it at all,” said Clothier of High Swartz Roberts & Seidel. Clothier, who was not involved in the case, also suggested that the ruling could be read to mean that lawyers would be liable for sending copies of pleadings to third parties, such as potential witnesses they plan to depose or subpoena. “If it isn’t provided to them at a deposition, it wouldn’t be in the course of a judicial proceeding,” he said. “It’s somewhat unpredictable just how far reaching this ruling could go.” George Bochetto, the lawyer who sued Gibson for defamation, did not return calls for comment yesterday. He was in court, where the trial in the underlying legal malpractice suit began Monday before Chester County Common Pleas Judge Howard F. Riley Jr. Gibson filed the malpractice suit against Bochetto and his firm, Bochetto & Lentz, on behalf of Bochetto’s former client, nonprofit Pickering Hunt, according to the opinion. At oral arguments before the justices in April, Bochetto urged them to adopt a standard of qualified privilege for communications outside of judicial proceedings, but argued that “pumping the complaint full of salacious material” and sending it to the press, as he claimed Gibson did, would not qualify as a proper extrajudicial communication. Nigro did say in a footnote that while Gibson isn’t absolutely immune from liability for faxing the complaint to The Legal Intelligencer, he may be entitled to a qualified privilege. However, a qualified privilege attaches to limited circumstances and can be abused in the manner of intentional harm or recklessness, rendering it inapplicable. “It turns it into a factual question of the intent and state of mind of the speaker,” Clothier explained. “Once you do that the protections afforded by the privilege are much weaker.” The high court affirmed the trial court’s granting of summary judgment to Gibson on the questions of whether his comments, quoted in the 1999 article in The Legal Intelligencer, were defamatory and whether statements he made in an e-mail to Bochetto’s malpractice insurer and in a letter to Bochetto’s firm were protected by judicial privilege. Addressing the issue of extrajudicial communications, Nigro applied a two-part test described by the high court in a 1986 ruling, Post v. Mendel. Without further analysis, Nigro said that Gibson’s fax did not meet the two elements of the Post test: (1) “it was issued during the regular course of the judicial proceedings; and (2) it was pertinent and material to those proceedings.” Post held that judicial privilege is based on the public policy which “permits all [suitors], however bold and wicked, however virtuous and timid, to secure access to the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate.” Gibson is now an attorney at Gibson & Perkins in Media, Pa. Tintner said that when the case returns to the trial court, he will motion for summary judgment on behalf of his client.

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