Libel

Misdemeanor Public Defender's Defamation Claim Against ACLU Can Go Forward

|The Volokh Conspiracy |

From Tuesday's Georgia Court of Appeals opinion by Judge Clyde Reese in ACLU v. Zeh, joined by Judges D. Todd Markle and Verda Colvin:

Zeh's complaint alleged the following facts. In 2015, Zeh was the part-time misdemeanor public defender in state court in Glynn County, but he also had a private practice where he represented clients in a variety of matters including felony cases in superior court. On the morning of April 1, 2015, Robert Cox was arraigned in state court for misdemeanor shoplifting. Cox attempted to plead guilty to the misdemeanor, but the prosecutor announced his intention to transfer the case to superior court and charge Cox with a felony pursuant to The judge advised Cox to consult with an attorney.

Later that day, Cox went to Zeh's private practice office, seeking representation on the felony charge. Zeh's secretary contacted the office of the solicitor, who confirmed that Cox's charge would be increased to a felony and transferred to superior court. Cox agreed to compensate Zeh $2,500 for his professional services regarding the felony charge, and Cox's mother, Barbara Hamilton, mailed a check to Zeh that day. The case was transferred to superior court five days later, and Zeh ultimately secured a dismissal of the felony charge against Cox.

Three years later, the ACLU published a blog post titled, "Glynn County, Georgia's Crooked Public Defender[.]" The blog post began:

"As the public defender for Glynn County, Georgia, Reid Zeh is entrusted with advocating for the most vulnerable members of his community when they come up against the criminal justice system. Rather than do his job, however, Zeh routinely ignores his clients or worse — extorts them to enrich himself. That's what happened when Robert Cox and his 75-year-old mother, Barbara Hamilton, came to Zeh for legal assistance after Cox was charged with a misdemeanor. Instead of looking out for his client's interests, Zeh took advantage of the family by charging them $2,500 for services that should have been free-of-charge."

The blog post went on to state that Zeh's behavior, which included ignoring Cox over the next two years, was consistent with the experiences of the ACLU's original two clients in the ACLU's pending lawsuit against Zeh and others. The ACLU continued: "That's why this week we're seeking permission from the [federal district] court to add Cox and Hamilton to our lawsuit against Zeh for his role in perpetuating Glynn County's wealth-based incarceration system and for failing to provide legal assistance to his clients who cannot afford a private attorney." {According to the ACLU, the blog post included a hyperlink, connected to the phrase "seeking permission" in the summary paragraph, to the relevant case filings.}

The ACLU also linked to the article in a paid advertisement on Facebook, which included a picture of Zeh with the headline: "Rather than trying to get his clients out of jail, this public defender extorts money from them." …

The court held that Zeh's case could go forward:

According to the complaint, the ACLU falsely stated that, in his role as a public defender, Zeh "extorted" his clients by "charging them $2,500 for services that should have been free-of-charge." Although the ACLU argues that it was merely stating an opinion, its expression implies an assertion of objective fact. As noted above, Zeh alleged that he maintained a private practice in order to handle felonies. [This presumably refers to Zeh's part-time job for the county being a misdemeanor public defender, so that he did not have to provide felony representation for free. -EV] Accepting Zeh's evidence as true, he has made a sufficient prima facie showing to establish that the objective facts were false and defamatory….

Certain … communications are conditionally privileged where they are made in good faith. {The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty; (2) Statements made in good faith in the performance of a legal or moral private duty; (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of  Code Section 9-11-11.1; (5) Fair and honest reports of the proceedings of legislative or judicial bodies; (6) Fair and honest reports of court proceedings; (7) Comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection therewith; (8) Truthful reports of information received from any arresting officer or police authorities; and (9) Comments upon the acts of public men or public women in their public capacity and with reference thereto.} However, Zeh has established a prima facie case that the ACLU did not make its statements in good faith, and that the statements are thus not privileged ….

"Statements are deemed to have not been made in good faith, but rather with malice, if the evidence shows in a clear and convincing manner that a defendant in fact entertained serious doubts as to the truth of his statements." Construed in the light most favorable to Zeh, Zeh did not represent Cox until after the prosecutor had expressed his intent in open court to transfer the shoplifting charge to superior court and charge Cox with a felony. Such transfer happened a few days later, more than three years before the ACLU made the statements at issue….

Zeh has made a prima facie showing that, as a part-time misdemeanor public defender, he is not a public official under the standard of New York Times Co. v. Sullivan. He has also made a prima facie showing that the ACLU should have determined from public court records whether there was any truth to Cox's contentions.

{In Cox's June 15, 2018 declaration, attached to the motion for leave to file an amended complaint in the federal action, Cox stated that he struggled with an alcohol abuse disorder and that he had been charged with misdemeanors in Glynn County more times than he could remember. According to Cox, his attorneys had "refreshed [his] memory by sharing a handful of [his] court records." Cox stated: "Based on reviewing those records, I can describe a few of my cases over the last several months." "In one case after approximately seven arrests," Cox went to his court date, where the judge "directed [him] to see the public defender, Mr. Zeh. [Cox] went to Mr. Zeh's office right after court. Mr. Zeh indicated that he would charge [Cox] an additional $2,500 to represent me as my public defender."}

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  1. Seems like the ACLU screwed up…

    A just punishment?

    The ACLU lawyers should be required to perform pro-bono services as public defenders in Glynn County for misdemeanors for the next 2 years.

    1. Please no! The people they’d be representing deserve better than that! I recommend instead they have to write “I will do my research next time” 2500 times.

  2. He ought to be considered a public official.

    It seems to me that there is a potential that the situation where one is working as a public defender in misdemeanor cases but a private attorney in felony cases is not a good one. At the very least, it can create the appearance of a conflict of interest if not an actual conflict. And undermine the confidence of people in our system of justice.

    This sort of dual practice should not be allowed.

    As far as the defamation charge, I am no fan of defamation in general. This exception to our free speech law comes from a time when men would regularly duel as a means of defending their honor and reputation in response to verbal insults. As just one famous example, Alexander Hamilton was killed by Aaron Burr. In that context, one can see defamation law as a much more urgent need such that maybe a free speech exception could be justified. But it seems no longer applicable. A free speech exception for defamation is now thoroughly obsolete.

    1. “It seems to me that there is a potential that the situation where one is working as a public defender in misdemeanor cases but a private attorney in felony cases is not a good one.”

      Could be, but having it so that an attorney who handles misdemeanor cases for the State cannot practice felony law seems kind of rough on the attorney, and makes it harder to get good public defenders.

      1. How about just not with the same client for the same offense?

        After all, an indigent client would also be entitled to a public defender for the offense even though it now has become a felony.

        (Although, I’m not so sure that the prosecutor isn’t involved in this, nor isn’t getting a kickback on it. Hopefully the ACLU will decide to have a chat with the prosecutor.)

    2. Glynn County, according to Google, is a county of 85,000 people and is over an hour from Savannah which looks like the closest big city. Having worked as a public defender in a large city as well as in rural America, this not only is normal, but is necessary to secure services in some areas. I would be willing to bet that Attorney Zeh’s primary practice is either as a general practitioner or primarily in real estate while taking the occasional criminal file. Unless the ACLU has evidence that Attorney Zeh is contacting the prosecutor and saying he does not want to represent client X for free and wants the prosecutor to file a charge in superior court just so he can charge client X, I completely agree with this ruling. What the ACLU did to Attorney Zeh, especially in a small town where the local attorney bar is not big, could be devastating to his practice. Maybe there’s more to their allegations, but based on this alone, that’s pretty bad on their part.

      1. “Having worked as a public defender in a large city as well as in rural America, this not only is normal, but is necessary to secure services in some areas.”

        Speaking as an academic who was stupid enough to be the advisor to an undergrad club, I was not impressed by the cadre of public defenders (contracted private attorneys) that I observed. Not an attorney, I had no doubt I could have done a better job drunk than any of them sober — except that there was one whom I don’t think I ever did see sober.

        And while $53/hour may not be great pay for a lawyer, it’s $2,120 a week, or $76,320 for the 180-day year that K-12 teachers work, and nearly twice what a lot of them make.

        I’ve long felt that there are a lot of middle-aged professionals (e.g. teachers, police officers, retired military, etc.) who with a 1-semester community college course would make far better bar advocates than the derelict lawyers we have doing it now. At least with misdemeanors although when I read of death penalty cases where the purported counsel fell asleep during trial, well….

        Attorney Zeh may be the brightest real estate lawyer in the county, able to straighten out title clouds in his sleep — but how is that relevant to defending drunken shoplifters?

        Or maybe lawyers should be required to have “court privileges” much as doctors are required to have “hospital privileges” (the issue in the pending abortion case). What’s rarely mentioned is that “hospital privileges” means that a doctor has to spend a few nights & weekends each month covering the hospital — perhaps the price of practicing in a court should include having to spend a few days a month defending the indigent for free.

    3. While it involves a state statute and not a SCOTUS precedent, the Massachusetts State Ethics Law is illustrative here — it makes a distinction between part time (or volunteer) public employees and full-time ones, but states that all are public employees.

      See: https://www.mass.gov/service-details/special-municipal-employees

      If a full-time public defender would be considered a public official, I am at a loss to understand why a part-time one wouldn’t be. Wouldn’t a part-time police officer enjoy the same qualified immunity as a full time police officer?

      NB: Part-time officers are more common than you might think — summer communities (e.g. Old Orchard Beach, ME) hire a lot of summer-only officers, and some small town departments are staffed entirely by part-timers. Lots of municipal departments have “special” police officers whom they call in for special needs like traffic control for a parade.

    4. Maybe that sort of dual practice shouldn’t be allowed. There are certainly some good arguments why it’s not a good idea. But the fact is that it IS allowed here, so the attorney wasn’t doing anything against the law or legal ethics. He represented clients as the law allowed. Change the rule if you want, but don’t criticize people for following the one that exists in the meantime.

  3. “…Zeh did not represent Cox until after the prosecutor had expressed his intent in open court to transfer the shoplifting charge to superior court and charge Cox with a felony.”

    Whiskey Tango Foxtrot?!?

    He was representing him, on the shoplifting charge, and it remains the same matter regardless of what court it is transferred to. How is this not a violation of bar ethics? I’d argue that Zeh defrauded the county because he essentially double billed here — he didn’t start the Superior Court defense with a blank slate and new file.

    Second, I find it damn suspicious that the prosecutor felt he/she/it had a strong enough case to go to Superior Court even though Cox was willing to plead guilty in District — and then winds up with a dismissal. (Was that a finding of not guilty or the judge tossing the case outright?)

    If the case was so weak (or flawed) that the felony was dismissed, Zeh should have defended his client on the misdemeanor charge.

    Third, are you allowed to file libel suits against the opposing party in an ongoing lawsuit? That strikes me as, at the very least, poor form.

    Fourth, I’m wondering what the ACLU might find in discovery….

    1. Yes you can file a libel counterclaim for blogposts, statements to the press, etc.

      There is also a litigation privilege for statements in pleadings and for witnesses, but the lines can be finer there. Day v. Johns Hopkins Health Sys., 907 F.3d 766, 2018 U.S. App. LEXIS 30241 (4th Cir. Oct. 26, 2018)

      1. Damn, did I ever have an incompetent attorney.

  4. “If the case was so weak (or flawed) that the felony was dismissed, Zeh should have defended his client on the misdemeanor charge.”

    The misdemeanor charge went away when the felony charge was filed.

    1. IANALNDIWTB — but while the district court docket number was replaced with a superior court one, the allegation — i.e. on date X he did Y&Z, remained the same.

      If this were an “arm’s length” transaction, the DA would have grabbed a guilty plea in district court for an allegation likely to be tossed when it got to Superior Court while the defense attorney would tell him not to make one because it would get tossed.

  5. The ACLU may once have had noble roots, but it has strayed far from them.

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