On September 13, 2024, shortly before the one-year DC defamation statute of limitations expired, Abbe Lowell, Hunter Biden’s attorney was sued for defamation. Abbe David Lowell (born April 28, 1952) is a famous American defense attorney who has represented several high-profile defendants. Some of the well-known political figures Lowell has represented include Bob Menendez, John Edwards, Jared Kushner, Ivanka Trump, Hunter Biden, Jim Wright, Dan Rostenkowski, Charles Keating, Joseph McDade, Joe Bruno, Gary Condit, and Jim Gibbons. He is currently a partner at Winston & Strawn.
The complaint is below.
What is interesting about this complaint is that Lowell is being sued for being the leaker, not for initially publishing his questionable allegations to Congress. It was his alleged leak to the media that has created the liability according to the complaint and our independent investigation. What is more interesting is the Plaintiffs do not have specific evidence that Lowell actually leaked the Congressional materials to the media. He simply said he was going to.
Under DC law, attorneys enjoy what is called the litigation privilege. 
Attorney Lowell normally can even submit false statement. This “absolute” privilege “ ‘protects the attorney from liability … irrespective of his purpose …, his belief in its truth, or even his knowledge of its falsity.’ ” Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C.2001) (quoting Restatement (Second) of Torts § 586 cmt. a). “For the absolute immunity of the privilege to apply, two requirements must be satisfied: (1) the statement must have been made in the course of or preliminary to a judicial proceeding; and (2) the statement must be related in some way to the underlying proceeding.” Arneja v. Gildar, 541 A.2d 621, 623 (D.C.1988).
Strange bedfellows now make up this legal team. A conservative from Louisiana and famed Steve Wynn, (Joe Francis killer) defamation attorney Mitchell Langberg was retained to file this action for defamation on behalf of the whistle blowers assisted in the Hunter Biden tax case. Hunter Biden did an open plea in Los Angeles last week. Langberg is confident that if he limits his facts to the press leak by Mr. Lowell he will survive a motion to dismiss.
Just this morning, the Court issued a deficiency notice as the full residence addresses of the agents were not in the pleadings. Langberg we imagine is expecting a motion to dismiss. Langberg will also have local counsel as well as both himself and his Louisiana counsel live and practice outside of the District.
Presumably, the records and communications in this case that were sent to Congress and the DOJ were not privileged. They are public records. However, they are records that may not always end up being published absent a public records request. Certainly, the letters to DOJ themselves or to Congressional committee would not subject Lowell to defamation as they related to the defense of his client. It is because Lowell said “[W]e are also making these materials available to the public.”, Langberg contends that was enough to prove he in fact was the leaker and two, if he did leak them, Lowell could not enjoy the absolute protection of the privilege.
The common law privilege, retained in contemporary defamation law, immunizes from liability the fair and accurate reporting concerning official government proceedings and acts as “a recognized exception to the common law rule that the republisher of a defamation is deemed to have adopted the underlying defamatory statement as its own.” White v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C.Cir.1990); see Restatement (Second) of Torts § 611 (Am. Law Inst. 1977). The privilege is intended to “encourage[ ] the media to disseminate official records—whether verbatim or in fair summaries—without fear of liability for any false, defamatory material that their might contain,” Dameron, 779 F.2d at 739, and its application is a legal question to be decided by the court as a matter of law, see, e.g., White, 909 F.2d at 527–28; Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla.Dist.Ct.App.1997). To qualify for the privilege, the material must have been contained in an official report, which is defined broadly to include “reports of proceedings before any court, or agency of the court, … reports of any other proceedings, judicial in character, which take place before administrative, executive or legislative bodies which are by law authorized to perform public duties, … as well as report of any official proceeding or action taken by any officer or agency of government.” White, 909 F.2d at 527 (quoting Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C.1980)); see also Restatement (Second) of Torts § 611, cmt. d. It also must be “apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents or proceedings,” Dameron, 779 F.2d at 739, and the author’s summarization of the official reports must be reasonably accurate and fair, see White, 909 F.2d at 527; Woodard v. Sunbeam Television Corp., 616 So.2d 501, 502 (Fla.Dist.Ct.App.1993). If the author’s work is a fair and accurate representation of an official report, the work is privileged, regardless of the veracity of the official report and “even if the official documents contain erroneous information.” Woodard, 616 So.2d at 502; see also Dameron, 779 F.2d at 739, accord, Montgomery v. Risen, 197 F. Supp. 3d 219, 266 (D.D.C. 2016), aff’d, 875 F.3d 709 (D.C. Cir. 2017)
In this case, Lowell was republishing his own submissions for his client. The issue is whether he loses immunity from doing so. The fair reporting privilege could apply if Lowell takes the position that he was simply reporting on his own submissions. The complaint doesn’t say the statements in the submissions were accurate. Lowell’s leak was accurate as to what he submitted so this is a hair that a Court may not split. Otherwise, the opposing side in a Congressional hearing would be able to sue the submitter and there is a policy of having people come forward to committees. Attorney arguments are not evidence. Yet, in this case, attorneys may be reluctant to make certain arguments. The better question is can an attorney ethically make an argument that he knows is false which is separate from a defamation issue.
The outcome here will require a DC Court to find that there is no litigation privilege and no fair reporting privilege to apply, plus the statements were in fact false. This is not a short hill but a medium mountain for the Vegas defamation attorney and UNLV professor to overcome.
The was assigned to Amy Berman Jackson who was the judge who handled the Roger Stone, Paul Manafort, and Rick Gates case.
It was then reassigned to Richard J. Leon.
We will update the article and add the motion to dismiss when it is filed which will be in about 45 to 60 days.
Recent Comments