Nix v. Cox Enterprises, Inc.

• Decision Date: 25 January 2001
• Docket Number: No. A00A0070.,A00A0070.
• Citation: 545 S.E.2d 319,247 Ga. App. 689
• Parties: NIX v. COX ENTERPRISES, INC. et al.
• Court: Georgia Court of Appeals

545 S.E.2d 319

247 Ga. App. 689

NIX v. COX ENTERPRISES, INC. et al.

No. A00A0070.

Court of Appeals of Georgia.

January 25, 2001.

Certiorari Granted June 25, 2001.

Garland, Samuel & Loeb, Edward T.M. Garland, Nelson O. Tyrone III, Atlanta, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, Atlanta, for appellees.

ELDRIDGE, Judge.

Franklin R. Nix, an attorney, sued Cox Enterprises, Inc. d/b/a The Atlanta Constitution, The Atlanta Journal, The Atlanta Journal Constitution, and Rochelle Bozman for libel per se by listing him in two published articles on March 9, 1998, as one of seven examples of criminal rogue lawyers, accusing him of attempting to solicit clients from another lawyer. The defendants placed his name immediately after the account of six lawyers charged with stealing their clients' money or convicted of felonies as examples of criminal rogue lawyers requiring State Bar discipline. The article also stated that these criminal rogue lawyers needed policing, were crooked, inept, arrogant, dishonest, or did shoddy work. The defendants stated that Nix had solicited another lawyer's clients, and, immediately after listing such examples of criminal rogue lawyers charged or convicted of crimes, they inserted two lines in the article, regarding litigation between Nix and another lawyer over communication with the other lawyer's client without disassociating language from the lawyers charged with criminal conduct. Accordingly, any reader might reasonably infer that the examples and statements about criminal rogue lawyers also included Nix as coming within the same description of characteristics as the criminal rogue lawyer listed before him. The relevant two lines of the article read as follows:

Another attorney, Franklin R. Nix, was scolded publicly by Fulton Superior Court Judge Wendy L. Shoob when Nix solicited business by sending letters to disgruntled Olympic vendors urging them to drop their current attorney and bring their business to them. Nix invoked the name of defense attorney Bobby Lee Cook in the letter to convince the potential clients to jump ship, and the attorney whose clients received the letters, Louis Levenson, has sued Nix, alleging tortious interference with his contracts and defamation. Both lawsuits are pending in Fulton Superior Court.

Nix stated his complaint under three theories of liability: defamation; invasion of privacy; and intentional infliction of emotional distress. The defendants answered and filed a motion to dismiss, now treated as a motion for summary judgment. Both parties filed evidence in support of and opposition to the motion; the defendants attached copies of the litigation that they reported in their article about Nix, asserting privilege for reporting a judicial proceeding accurately. On July 31, 1998, the trial court entered an order dismissing plaintiff's complaint. On August 28, 1998, Nix appealed.

The Supreme Court of Georgia in Cox Enterprises v. Nix, 273 Ga. 152, 538 S.E.2d 449 (2000) reversed Nix v. Cox Enterprises, 242 Ga.App. 515, 529 S.E.2d 426 (2000) and held that, by not objecting and by filing his affidavit and evidence in opposition to Cox Enterprises' motion to dismiss, Nix waived notice and agreed to consideration of the motion as converted to a motion for summary judgment. The case was remanded to this Court to "address the merits of the appeal treating the asserted dismissal as a grant of summary judgment." (Citation and punctuation omitted.) Cox Enterprises v. Nix, supra. We adopt the opinion of the Supreme Court.

Thus, Nix's sole enumeration of error is that the trial court erred in granting Cox's motion for summary judgment. We reverse this judgment as to the issue of libel only and affirm the grant of summary judgment on the other theories of liability. Material issues of fact exist as to whether or not Cox Enterprises exercised reasonable care in publishing the article and made a "fair and honest report[ ] of court proceedings" under OCGA § 51-5-7(6). In particular, although

the report of the judicial proceeding was substantially accurate as to Levenson v. Nix, the question of whether the article was fair and honest was for the jury to determine in that the additional material did not come out in the reported judicial hearing and invidiously compared Nix's conduct to lawyers who had committed criminal conduct against their clients; this led the reader to reasonably infer that Nix's conduct had been criminal from the context of the entire article.

1. (a) Nix, in the lawsuit by Levenson, was alleged to have violated State Bar Rule 4-102(d) Standard 6(D)(1) by soliciting another lawyer's clients by contacting them in writing and seeking employment without the lawyer's permission:

A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, associate, or any other lawyer affiliated with him or his firm, a written communication to a prospective client for the purpose of obtaining professional employment if: (1) the written communication concerns a specific matter, and the lawyer knows or reasonably should know that the person is represented by a lawyer in the matter.

State Bar Rules as amended, 252 Ga. 571, 641 (1984). Such standard's violation is subject to disciplinary action by sanctions from admonition to disbarment. See Rule 4-102; 255 Ga. 861, 862 (1986). However, since 1984, when the rule was substantially amended, there has been no reported case of discipline of any lawyer under any of the multiple provisions of Standard 6, no less Standard 6(D)(1). There exist in each Georgia Report many disciplinary actions under other standards against lawyers, including contact with a party represented by a lawyer. The primary focus of the State Bar disciplinary action has long been the protection of a lawyer's client from the misconduct of his or her lawyer. See 255 Ga. 857 et seq. Thus, the violation of this standard, while unethical, fails to have the gravity of the violation of other standards protecting clients from their lawyers' misconduct. As in Levenson v. Nix, supra, Standard 6 is designed to protect the lawyer-client relationship from intermeddling by another lawyer seeking to obtain employment by taking the client. Such aggrieved lawyer has an adequate judicial remedy in both law and equity to protect himself as demonstrated by the reported case of Levenson v. Nix.

(b) In a similar standard to Standard 6, Standard 47 and Directory Rule (DR) 7-104(A)(1) of the Georgia Code of Professional Responsibility prohibit contact by a lawyer representing a party from contacting another party, who is also represented by counsel, without prior written permission of the other party's counsel. Sanifill of Ga. v. Roberts, 232 Ga.App. 510, 511, 502 S.E.2d 343 (1998). This Standard 47 has been so narrowly construed that it is difficult to violate, indicating that it is not deemed so serious as to cause judicial action.

[Standard 47] is designed to protect a represented party's right to effective representation of counsel by preventing adverse counsel from taking advantage of such party through undisclosed contact. The rule also promotes ethical behavior on the part of [lawyers]. In those cases where the parties are individuals, the rule has been easily enforced. When the named party is a corporation, the courts have struggled with the question of whether a corporate officer or employee, though not named as a defendant, should be considered a party. In State Bar of Georgia Formal Advisory Opinion 87-6 (1989), the Supreme Court of Georgia, adopting the consensus view of other jurisdictions, concluded that when a corporation is an opposing party in pending litigation, Standard 47 applies to an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case, as well as to an officer or other employee with authority to bind the corporation.

Id. at 511, 502 S.E.2d 343 (seeking to suppress a statement made in violation of this standard). However, the courts have held such standard does not apply to former employees who are not represented by the employer's counsel. See Supreme Court Formal Advisory Opinion 94-3; Sanifill of Ga. v. Roberts, supra at 512, 502 S.E.2d 343; see also Alternative Health Care Systems v. McCown, 237 Ga.App. 355, 361(6), 514 S.E.2d 691 (1999) (seeking to disqualify counsel for a violation of this standard). In fact, under the Federal Employers' Liability Act, contact with other railroad employees by an injured railroad worker's lawyer is authorized by federal statute, thus satisfying Standard 47, although neither the employer nor its counsel authorized such interview. Norfolk Southern R. Co. v. Thompson, 208 Ga.App. 240, 244-246(4), 430 S.E.2d 371 (1993) (seeking to exclude from discovery work product statements obtained in violation of this standard).

(c) Even the violation of the sacrosanct attorney-client confidentiality, which is the bedrock of the attorney's ethical duty to his client, does not rise to the substantial equivalent of criminal conduct. "There are no statutory criminal penalties visited upon an attorney who in violation of his ethical relation to his client divulges a confidential communication." Cranford v. Cranford, 120 Ga.App. 470, 474(4), 170 S.E.2d 844 (1969).

It is important to recognize, however, that behavior which might be unethical and might even subject an attorney to discipline by the State Bar does not necessarily rise to the level of criminal conduct.... It is therefore essential that we not confuse possibly unethical conduct with criminal conduct. While these types of conduct may be similar, they are not synonymous in every case. The possibly unethical conduct here does not rise to the level of criminal conduct within the [criminal] statute.

Marcus v. State, 249 Ga. 345, 346, 290 S.E.2d 470 (1982) (concealment of a material fact by trick,...