This ought to be fun.
Earlier this month, Republican Texas House lawmaker Briscoe Cain sent Texas abortion funds cease-and-desist letters, threatening the funds, their donors and volunteers with criminal prosecution unless they stopped helping fund abortions in Texas.
Now, the Texas Equal Access Fund, a major abortion fund, has published a letter calling Cain’s statements false and defamatory, and threatening to “explore all legal options.”
“Your letters falsely accuse our clients of engaging in criminal acts by funding abortions in any situation in which the mother’s life is not in danger,” reads the response letter by attorneys with the Thompson Coburn law firm. “This accusation, which you have made public by publishing the letters on social media, is objectively false, and has been for almost 50 years.”
“Your unfounded criminal accusations are also defamatory,” the letter continues. “It is per se defamation to falsely accuse someone of criminal acts in Texas. You publicized these letters on social media and issued a press release in which you call our clients ‘criminal organizations.’ Therefore, the false and defamatory statements have been published to a potentially unlimited number of third parties. Your decision to publish these statements on social media demonstrates that the defamatory effect of your words is intentional. Therefore, it is imperative that you immediately retract and/or clarify your defamatory statements.”
“If you do not issue this retraction, our clients will have no choice but to explore all legal options,” the letter concludes, threatening to seek injunctive relief requiring a retraction or clarification of Cain’s statements, or damages to compensate the defamation, damages to clients, and legal fees.
The letter was sent on behalf of several abortion funds in Texas; The North Texas Equal Access Fund, Lilith Fund for Reproductive Equity, The Afiya Center, Frontera Fund, The West Fund, Clinic Access Support Network, and Fund Texas Choice.
You can see a self-incriminating tweet from Cain in the post, and the response letter is here. It also reminded him that the funds are represented by counsel and by state law you’re supposed to only communicate with them via their lawyers, which he did not do. They demanded that he confirm in writing whether he was acting in his role as a State Rep, as an attorney representing someone, or as a private citizen, by five PM yesterday. I suspect they might not have gotten an answer by then, so we’ll see what comes next.
The demand to retract his accusation of criminal activity is the biggie, though. When I blogged about that big WaPo article about the lawsuits filed by the abortion funds, there was a quote from Cain in which he explicitly called it a “crime” to pay for another person’s abortion in Texas and that anyone who donates to these funds will be prosecuted. That’s not only not true, if it were true it would defeat the whole evading-judicial-review aspect of SB8, since the district attorneys and probably Ken Paxton would be obvious defendants to be sued for an injunction. I’m honestly not sure if Cain is too dim to realize that or if he does know and just doesn’t care. Either way, there’s no shortage of evidence for when the inevitable lawsuit against him gets filed. The Trib has more.
LAWYERLY THREATS
Re: “It also reminded him that the funds are represented by counsel and by state law you’re supposed to only communicate with them via their lawyers, which he did not do.”
This is a lawyer rule. See Tex. Disciplinary Rules Prof’l Conduct R. 4.02(a), captioned ‘Communication with One Represented by Counsel’. How could he be said to be acting as an attorney when writing as an elected representative on his public-office letterhead?
– Far-fetched.
And if he were not a politician and were issuing a demand or cease & desist letter on behalf of a client, any attorney would identify the client by name as a matter of course, which would additionally communicate that the written communication is covered by “attorney immunity”.
In general (in Texas) an attorney is not liable to an opposing party “for actions taken in connection with representing a client in litigation.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (quoting Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.-Houston [1st Dist.] 2005, pet. denied)).
AND WHO WILL HAVE A FEE-SHIFTING CLAIM?
Since defamation is a tort claim, it will be interesting to see what nonfrivolous legal basis for an attorney fee recovery by the plaintiff, as opposed to the defendant, will be pleaded (if any), should it come to litigation.
Generally, a party cannot recover attorney’s fees for prevailing on a tort claim. See Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009) (“Under the American Rule, litigants’ attorney’s fees are recoverable only if authorized by statute or by a contract between the parties.”).