By Kelsey J. Brudvig and Robert M. Peele, III
If you have been watching the news recently, you are probably tired of hearing about the Depp v. Heard case. On the other hand, watching attorneys make fools of themselves can be quite entertaining. However, when your attorney publicizes accusatory statements regarding your case, you should be concerned.
The jury in the highly publicized Depp v. Heard case found Depp liable for a two-million-dollar judgment as a result of the following defamatory statement made by Depp’s former attorney, Adam Waldman:
Adam Waldman statements
“Quite simply this was an ambush, a hoax. They set Mr. Depp up by calling the cops but the first attempt didn’t do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicist, and then placed a second call to 911.”
While it may seem unfair to hold Depp liable for his attorney’s statement, the jury found that Waldman, as Depp’s attorney, was acting as Depp’s agent when he made the statement.
Essentially, all lawyer-client relationships are agency relationships wherein the client is the principal and the lawyer is the agent. In South Carolina, “Absent intention to the contrary, an agent must further the principal’s interests. He may not use his authority in a manner hostile to the principal for the benefit of himself or a third party. Fender v. Fender, 285 S.C. 260, 262, 329 S.E.2d 430, 431 (1985) (quoting 2A C.J.S. Agency, § 151, p. 773).
When an attorney acts against their client’s interests for their own benefit, they may be subject to disbarment or liability for legal malpractice.
A claimant in a legal malpractice action must establish four elements: (1) the existence of an attorney-client relationship, (2) a breach of duty by the attorney, (3) damage to the client, and (4) proximate causation of the client’s damages by the breach. Holmes v. Haynsworth, Sinkler & Boyd, P.A., 408 S.C. 620, 636, 760 S.E.2d 399, 407 (2014). Additionally, a claimant is required to demonstrate that “he or she ‘most probably would have been successful in the underlying suit if the attorney had not committed the alleged malpractice.'” Doe v. Howe, 367 S.C. 432, 442, 626 S.E.2d 25, 30 (Ct. App. 2005) (quoting Summer v. Carpenter, 328 S.C. 36, 42, 492 S.E.2d 55, 58 (1997)).
Being the litigious man he is, Depp may choose to bring an action for legal malpractice, again. In 2017, “Mr. Depp sue[d] his attorneys for legal malpractice and breach of fiduciary duty, and the moving parties argue[d] Mr. Depp’s attorneys acted in concert with his former managers and failed to advise Mr. Depp of his former managers’ misconduct.” Depp v. Diemer, 2017 Cal. Super. LEXIS 14312, *2.
If Depp was to bring another action for legal malpractice, Waldman would likely claim that no duty was breached because he was furthering Depp’s interests by making the statement. Alternatively, Waldman may argue that Depp directed him to publicize the statement in question. Either of these arguments may be sufficient for Waldman to avoid liability for legal malpractice. Nonetheless, Depp would once again find himself surrounded by a myriad of attorneys, instead of pretending to be a pirate or the owner of a chocolate factory.
Regardless of if you’re Johnny Depp and like to spend your free time practicing for your band’s next tour, you probably don’t want to spend much time in court. For that reason, among others, finding an attorney experienced in professional liability law may be the best course of action, especially when a public statement needs to be made.
If you are a professional and have received a complaint against your license, click here for information regarding what to do next.
Contributor: Justin Lawlor