First Amendment Ruling Against Lawyer who Spoke to the Press about Settlement

A federal appeals court gave new meaning to 'free speech' for an Arizona attorney who won nearly $1 million in a First Amendment case. The court vacated the entire judgment, including more than $300,000 in attorney's fees.

Maria Brandon, a Maricopa County attorney, had sued the county for retaliating against her after she spoke to a newspaper reporter about the county's settlement practices. The U.S. Ninth Circuit Court of Appeals said county officials did nothing wrong, and reversed a jury's verdict.

"In light of what they considered were justifiable misgivings regarding Brandon's judgment, these officials requested that Brandon not be assigned further cases in which the county was a party and which involved risk management," Judge Carlos Bea wrote for the unanimous panel.

Newspaper Story

Brandon had been a litigator for decades, last working for the county's special litigation department, when a reporter from the Arizona Republic called her. She was the attorney of record in a police brutality case, which had settled.

Armed with a confidential memo that had been leaked to the newspaper, the reported called Brandon because had written the memo. Brandon refrained from commenting directly on the memo, but authorized the reporter to print her spoken statements.

The newspaper article suggested the county made an overly generous settlement offer to prevent embarrassing certain county officials who might have been required to answer questions in depositions. In this regard, Brandon said: "I don't know why they did what they did, and I'm sure they have their reasons."

Jury Award

When the county fired Brandon, she sued for wrongful termination, tortious interference with contract and other claims. A jury concluded, after seven days of trial, that the county was liable to her for $638,147.94. The judge added $302,175.28 because she was the prevailing party on her First Amendment claim.

The court of appeals reversed, concluding that county officials had done nothing improper. On the contrary the court said the county acted properly under the circumstances.

"Brandon's statement that they must 'have their reasons' cements the implication that the client was acting unprofessionally," the court said.

Related Resources:

• Ethical Rules for Litigating in the Court of Public Opinion (ABA)
• 3 Reasons Attorneys Fail When Speaking to Reporters (FindLaw's Strategist)
• Court Upholds Order to Save Salmon (FindLaw's U.S. Ninth Circuit Blog)