Like other segments of society, lawyers are increasingly on the receiving end of libel and slander cases. Although such cases may be difficult to both prove and plead, that technicality is not proving to be much of a deterrent. Lawyers today are more willing to speak out, both publicly through the media and privately through often ill-conceived written missives. And those on the receiving end of the practitioner's intemperate comments are more willing than ever to try to make the lawyer pay.

In fact, says Joyce Harris, the "mystique" surrounding this area of law could be contributing to the increase in these types of malpractice claims.

"As lawyers, ours is a fine balancing act: We're paid to speak out on behalf of clients, to brandish our tongues, especially in today's competitive, media-savy society. But the line between representing your client and defaming the opposing party can be a fine one, and is proving to be more difficult for us to walk these days."

The need to walk that fine line, says Harris, a veteran of libel and slander practice for both plaintiffs and lawyers, applies to any communication we undertake, be it a simple letter, an aside to opposing counsel, or a public speaking opportunity.

When the pen is mightier than the sword
All too often, practitioners keen to be seen as warriors and curry favour with their clients issue a strongly worded demand letter. Although that letter in itself may not constitute defamation, when it gets copied to a third party such as a bank manager, real estate agent or other individual not directly involved in the action and the opposing party takes offence, a lawsuit often results.

The courts in these kinds of matters are very much swayed by a number of factors says Harris:

• the use of temperate or intemperate language;
• whether or not you were acting appropriately to safeguard your client's interests or simply casting aspersions far and wide;
• the number of parties to whom the correspondence was sent and whether or not sending it to each of them was justifiable;
• and, of course, whether or not the litigation had commenced.

Today's highly competitive, technology-intensive and time-driven environment makes judicious use of the written word all that more difficult, admits Harris.

"Technology has imposed an expectation of immediacy on all parties - lawyers and clients alike. We're expected to respond immediately, we no longer take the time to reflect on that poison pen letter, to sleep on that turn of phrase, to give ourselves a cooling off period, a moment of sober second thought."

Her solution: Sleep on it, no matter what you've said, no matter who's pressing you to respond, "because chances are you'll see the whole matter in a different light by next day."

"Free" speech - at a steep price tag
Gone too, says Harris, are the days when "the art of the insult" was something a lawyer had to master. Today, we're less articulate, less well-versed in the art of using language - the end result of which is that litigation is becoming ruder and more prone to defamation actions, says Harris.

Equally important is for lawyers to consider carefully the forum in which they speak out. She points to the example of the lawyer who, after examination for discoveries had adjourned, spoke his mind to opposing counsel in front of the client and the reporter - forgetting perhaps that his qualified privilege no longer applied. His "off the record" remarks became the subject of a costly legal suit.

"We need to constantly remind ourselves when and where the notion of privilege applies," points out Harris. "If we're speaking out outside the court room, we may be on the hook for anything we say. We need to appreciate this very real exposure in public settings."

The media minefield: Tread carefully
In today's media-oriented society, it's tempting for lawyers to use the media to further their client's causes, admits Harris. "Many of the cases that we take on have social and political overtones, and as advocates for our clients, we sometimes look for opportunities to give voice to those who have no voice, to see ourselves as saviours."

But in the arena of public opinion, warns Harris, it's easier than in most places to cross the fine line between advocating for the client and risking a libel or slander suit. The lawyer who uses public forums, press conferences, or public meetings to ferret out other potential parties to an action, "drum up business" or even launch an action is particularly vulnerable.

LPIC has been forced recently to defend numerous lawyers who have crossed that line - at costs that often approach the limits provided by the insurance program, partly because defamation cost awards can be significant and partly because defending this type of claim is a costly exercise.

What lawyers in these types of situations fail to realize (or appreciate) is that they are potentially on the hook for any allegations or injudicious remarks made in a public forum - no matter who makes them. By simply being present, the lawyer is implicated; the more active a role the lawyer plays, the more significant the potential consequences.

Moreover, points out Harris, the press conference is a minefield that few lawyers are trained to navigate. And when confronted with a particularly aggressive reporter or less- than-scrupulous scribe, a lawyer's best-laid plans can easily go awry.

It may be hard, admits Harris, to resist pressure from clients, who've witnessed the media's ability to drive decisions in class actions and the like. Lawyers often fall victim to the bright lights, enticed to offer off-the-cuff comments on the courtroom steps, perhaps to clarify the client's position, perhaps to ensure the story that gets out is, in the lawyer's view, accurate and fair. Harris' advice: Measure carefully the temptation to "go on the record."

"Many lawyers do not know how to handle the media, who to trust, who is responsible and who is not; reporters have their own set of rules and ethics, and if you don't know them, it's a trap for the unwary," warns Harris, herself a veteran of the quotable media quote.

And even if a defamation suit against a lawyer is ultimately dismissed, the costs for the lawyer are significant, adds Harris who has acted as defence counsel in many such situations.

The personal toll of a claim, the costs of the DEDUCTIBLE which may have to be called on, the reputation management issues, are all considerations that practitioners should weigh carefully as they balance their role as advocates against the fine line of defamation.