Online and Off-Line Publisher Liability and the Independent Contractor Defense CHARLES D. TOBIN AND DREW SHENKMAN

Media and entertainment companies— type of defense in a given case. But the defendants who have made good use with the waves of buyouts, layoffs, strength and continued vitality of the of their status as principals as a bar to and other measures to cut payroll in a doctrine suggest that media defense their tort liability for the acts of inde- challenging industry environment—are lawyers ought to consider it seriously. pendent contractor agents. turning more and more to freelancers And, in fact, counsel assisting in the Of course, if a plaintiff is able to and other third-party providers to pro- engagement of a freelancer would demonstrate a factual question on duce content.1 The use of freelancers is, benefit from considering this defense the bona fides of the independent con- of course, not new to the industry. Many at the onset of the independent contrac- tractor, the principal will not succeed magazines and most book publishers tor’s engagement. One need look no on summary judgment. For example, traditionally have relied on independent further than a recent federal court’s in medical malpractice cases, the com- contractors rather than employees in application of the doctrine to an actual plex relationships between physicians the production of new works. But the malice claim against an on-demand and health care facilities often make it economic pressures on off-line media, book publisher to see the power of the difficult for hospitals to obtain sum- the business models for much of the independent contractor arrangement.4 mary judgment.13 online world, and the emerging op- The following list identifies some of tions for self-publication augur well for Independent Contractor Defense the factors that courts use to determine freelancer-supplied content. As a general rule, the common law whether an agent is an independent An increased reliance on freelanc- holds that a principal (or master) is contractor or an employee: ers may provide new opportunities for not liable for the torts of an indepen- media defense counsel and their cor- dent contractor agent. The rule is a • the extent of control exercised porate clients to shorten litigation and departure from that of the employer- over the contractor’s work; curtail exposure for tort claims. While employee relationship, where the • whether the contractor is engaged employer-employee relationships bring employer directs the employee’s work, in a distinct occupation or with them respondeat superior liability provides the means of performance, business; for publishing torts such as defama- and enjoys all rights to exploit the • whether the work is supervised by tion,2 masters traditionally have not results.5 Unlike the typical employment the principal at that locale; been held vicariously liable for the torts context, a principal in an independent • the level of skill required in the of their independent contractor ser- contractor relationship gives up the occupation; vants.3 Although a handful of reported right to control most of the details • whether the principal supplies the decisions—most of them favorable to about the manner in which the work is instrumentalities; the defense—reflect some pursuit of produced, and the principal therefore • the length of the contractor’s the independent contractor defense, ordinarily is not legally responsible for engagement; its use in the media and entertainment an independent contractor’s torts.6 Of • whether payment is per job or industries remains, from all outward course, the media industry has refa- salaried; appearances, confined to the field of miliarized itself with the legal conse- • whether the work is an integral book publishing. quences of the independent contractor part of the principal’s regular Ethical and practical considerations relationship through a number of recent business; may make it difficult to mount this high-profile copyright infringement • the intent and belief of the parties; claims brought by freelancers, arising • whether benefits are provided by Charles D. Tobin is a partner and and Drew out of digitized publications.7 the principal. Shenkman is an associate in the Washington, The independent contractor doctrine D.C., office of Holland & Knight LLP. The has long been an absolute defense to Liabilities of Principals authors gratefully acknowledge two excellent tort liability claims brought against Despite this strong protection for prin- white papers: Larry Worrall, The Insurer’s corporations in a number of industries. cipals, the law has developed several Perspective, ABA Tort Trial and Insurance Construction companies, for example, exceptions where the independent con- Practice Section, Media, Privacy, & Defama- routinely assert this defense in litiga- tractor’s wrongdoing may be attributed tion Law Newsletter, Spring 2004; James E. tion arising out of alleged defects in to the principal, even where the con- Stewart, The Joint Defense of Publishers and the erection of a building8 and injuries tractor’s status is not in question. For Independent Authors—Tactical and Insur- suffered on the job site.9 Premises example, the law disfavors dismissal of 10 ance Considerations, ABA Tort Trial and owners, providers of services in the principal where a statute or regula- 11 12 Insurance Practice Section, Media, Privacy, homes, and transporters of goods tion imposes particular responsibility & Defamation Law Newsletter, Spring 2004. are among the many other types of on the principal, or where the duty is so

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 1 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. integral to the principal’s business that it or should have known of the contrac- breaks the chain of imputation of actual is presumed to be “non-delegable.” In a tor’s propensity for the conduct which malice on the part of the publisher.29 decision that hits very close to home for caused the injury.”20 An excellent application of the most law firms, the New York Court of doctrine is Judge Revercomb’s opinion Appeals has held that, notwithstanding If It Looks like a Duck in Secord v. Cockburn,30 a libel action the use of an independent contractor, Importantly, as the Ninth Circuit held by Gen. Richard Secord, arising out of a law firm can be held liable for negli- in the landmark case of Vizcaino v. Mi- the book Out of Control: The Story of gently failing to make service. That duty crosoft, it is insufficient to merely label the Reagan Administration’s Secret War is so integral to the legal practice that workers as “independent contractors.” If in Nicaragua, the Illegal Pipeline, and the courts will presume that it cannot be the worker is, in fact, treated as an em- the Contra Drug Connection. Secord delegated as a matter of liability.14 ployee, the court will find no indepen- brought the action against the book’s Additionally, when the work carries dent contract relationship existed and author, editors, publisher, and dis- with it an inherent risk of harm, the law instead will accord the worker the legal tributor. The author of the book, which holds that the principal should recognize status of an employee.21 In Vizcaino, reported on Secord’s role in the Iran- the risk in advance of retaining a contrac- Microsoft routinely hired workers who Contra affair, was a freelancer. tor. Because of the obviousness of the were anomalously designated as “per- In rendering summary judgment to risk, the law will hold the principal vi- matemps.” Permatemps were required the publisher, editors, and distributor on cariously responsible for the independent to sign written agreements acknowledg- grounds of no actual malice, the court ing that they were independent contrac- noted as an initial matter: tors. Nevertheless, these workers were The independent contractor integrated into the workforce, partici- Actual malice must be proved sepa- pated on teams with regular employees, rately with respect to each defen- doctrine has long been an shared the same supervisors, performed dant, and cannot be imputed from identical functions, and worked the one defendant to another absent an absolute defense to tort same hours.22 The only difference was employer-employee relationship giv- that the permatemps had to pay their ing rise to respondeat superior. . . . liability claims. own taxes and were not included in . . . . Microsoft’s fringe benefits programs.23 contractor’s negligent performance.15 But The permatemps sued Microsoft in class Plaintiff cannot rely upon the theory to warrant vicarious liability for the prin- action and eventually won a judgment of respondeat superior to impute cipal, the conduct must be so unreason- against the company allowing them to evidence of actual malice from ably dangerous that even reasonable care buy reduced stock.24 Microsoft eventu- Leslie Cockburn to these defendants does not render it safe.16 ally settled for $75 million.25 because the undisputed facts in the Moreover, if the principal was on The lesson learned from Vizcaino record before this Court provide that notice that the independent contractor is that publishers entering into agree- the author is an independent contrac- was likely to create unsafe conditions, ments with independently contracted tor. The plaintiff has failed to point to or had done so in the past, the principal authors should ensure that the con- a single fact in the record on whether will not be protected from liability un- tractual declaration of independent Entrekin, AMP, and Little Brown der imputed theories of negligent hiring contractor status cannot be interpreted each had personal actual knowl- or negligent retention. Negligent hiring as a sham, as the Ninth Circuit deemed edge of falsity or serious doubts as claims tend to yield anomalous results. Microsoft’s arrangement. to the truth of Out of Control.31 Depending on the jurisdiction, igno- rance of a contractor’s incompetence Actual Malice Claims Judge Revercomb found the record or lack of qualifications is potentially To the extent publishers have used lacking any evidence as to the states exculpatory and knowledge of them is the independent contractor defense in of mind of the book’s principal editor, inculpatory.17 Yet in others, ignorance libel and related tort claims, they have publisher, and distributor, and for that can yield to liability if the principal met with the most success where the reason granted summary judgment for failed to probe its putative contractor standard of care is actual malice.26 This want of actual malice. thoroughly enough.18 makes perfect sense in the context of The court’s analysis of another edi- New York courts are the most actual malice claims, which require tor’s potential liability was much more reluctant to allow negligent hiring and clear and convincing proof that a given detailed. The editor had submitted an negligent retention claims to subsume defendant actually knew the informa- affidavit attesting that he had “worked the doctrine that absolves principals for tion was false or proceeded to publish with [the freelance author] editing contractors’ conduct. Courts there are despite subjectively entertaining doubts and reorganizing the manuscript” and “cautious in extending liability to de- in fact as to the truth.27 Because of the had assisted in “incorporat[ing] into fendants for their failure to control the rigorous burden plaintiffs face as to the the manuscript new material that was conduct of others[.]”19 A plaintiff seek- subjective state of mind of each indi- becoming available on an almost daily ing to impose liability on a principal for vidual defendant,28 courts have been basis as a result of the ongoing inves- the torts of an independent contractor receptive to arguments that, whatever tigation of the Iran-Contra Commit- under the negligent hiring theory there- the freelance writer’s state of mind, an tees (which were then in the process fore “must establish that the party knew author’s independent contractor status of holding hearings).” The editor’s

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 2 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. affidavit concluded that “all sugges- made clear that the First Amendment the power of the Internet, individu- tions that I made were read by and/or would not allow it to impose such a als now may circumvent traditional discussed with [the author] to assure duty upon publishers. publishing houses to bring their works their accuracy.”32 Additionally, in his Another court similarly granted to publication. The common character- deposition, the editor had testified that summary judgment in favor of a book istic of publish-on-demand services is rather than rewrite the manuscript him- publisher on claims of negligent mis- their singular role of printing whatever self, he had instead “suggested to [the representation and deceptive practices the customer requests. In the world of author] that paragraphs be rewritten. arising out of plaintiff’s alleged reliance on-demand publishing, the editing and Sometimes I submitted ideas.”33 on factual information contained in a fact-checking services of traditional pub- The court declined to equate this book to counsel adult victims of child lishers are strictly at the author’s option. record of the editor’s hands-on in- abuse.39 The court concluded that, unless And, unlike vanity publishing companies volvement in shaping the text with the book publishers assume the duty to of the past, on-demand publishers typi- imputed knowledge from the author. In investigate, placing a burden on them cally do not require customers to buy the words of the court, the testimony “to check every fact in the books they a minimum quantity of their books up- “establishes that he was not involved in publish is both impractical and outside front. Instead, the publisher prints copies substantively writing Out of Control.” the realm of their contemplated legal only as purchased by the author for The court further rejected the argument duties.”40 Thus, even if the authors could resale or as they are purchased online. favoring liability that the plaintiff had be held liable for negligent publication Publish-on-demand companies, cast as “aiding and abetting.” of erroneous information, the publishers however, are not simply copying ser- were immune from liability for the inde- vices. They also offer a menu of à la Simply alleging a “close working pendent contractor’s alleged torts.41 carte services to help authors prepare, relationship” or “aiding and abetting” Much as with the independent edit, and market their works. Some of is begging the fundamental question contractor defense in actual malice the larger on-demand services include at issue before this Court, namely, cases, the courts are unwilling to hold Lulu.com, the Amazon.com subsidiary where are the record facts from publishers, absent actual knowledge, BookSurge, and AuthorHouse.46 For which a reasonable jury could find to a high duty in these nondefamation example, Lulu.com offers sophisticated actual malice pursuant to the clear negligence claims.42 design templates and comprehensive and convincing standard? The plain- editing packages for purchase. Book- tiff has come forward with none[.]34 Third–Party Content Online Surge, utilizing its association with In a related area of the law, Com- Amazon.com, offers comprehensive The court therefore granted sum- munications Decency Act § 230 has marketing services to authors, including mary judgment in favor of the editor routinely been applied to limit liability printing and shipping the books directly as well.35 for re-publication of third-party content to customers upon purchase. Some Book publishers have done well on the Internet.43 Courts generally have on-demand publishers contract out the in numerous other cases governed by interpreted this provision broadly, find- fact-checking and editing services, but heightened levels of proof in which ing that it encompasses not only claims the extent of this practice is unknown. they have asserted no liability for the such as defamation for which publica- Publish-on-demand has begun to works authored by freelancers.36 tion is an element, but any claim based prove fertile ground for the growth on a service provider’s alleged failure of the independent contractor defense Don’t Try This at Home to “exercise . . . a publisher’s traditional for publishers. Recently, in Sandler v. There is a dearth of case law interpret- editorial functions,” such as monitoring Calcagni,47 the federal court in Maine ing or applying vicarious liability of or screening other parties’ transmis- decided the first major publish-on- publishers to defamation-type cases sions or deciding whether to withdraw demand defamation lawsuit in which that are not governed by the actual or delete content.44 Recent cases have BookSurge was one of the defendants. malice standard. However, in another generally continued the provision’s The facts from Sandler are straight out type of publishing tort claim in which broad swath of publisher immunity, of an after-school special gone bad. the negligence standard was applied, a with the emerging issue that the immu- Two young women, Shana Sandler book publisher was not held vicariously nity claim is weaker where the online and Mia Calcagni, were classmates liable for freelancer content. service provider played a significant in high school and members of the In Winter v. G.P. Putnam’s Sons, role in the creation or development of cheerleading squad. Over time, their plaintiffs alleged that they were poi- the information.45 Notably, the protec- friendship soured, and Calcagni spread soned when eating wild mushrooms tion of § 230 is expressly limited to vicious rumors about Sandler. The fight they picked based on information con- publications occurring on an “interac- eventually escalated to the point where tained in a book.37 The Ninth Circuit tive computer service” and would not Calcagni was found guilty of criminal affirmed summary judgment in favor of be available to a publisher that repro- mischief and agreed to a consent decree the book publisher because a publisher duced the identical text off-line. for a hate-crime charge.48 is not “a guarantor of the author’s state- After Calcagni’s criminal ordeal, ments of fact,” and “ha[s] no duty to So You Want to Be a Writer? her family wanted to tell their side of investigate the accuracy of the contents Book publishing recently has taken a the story. They hired an author and of the books it publishes” unless it new path in the increasingly popular independent fact-checker to help write “assumes such a burden.”38 The court world of publish-on-demand. Through and research their version of events for

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 3 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. a book, Help Us Get Mia. The Calcag- nis purchased a package from Book- DRAFTING THE CONTRACT Surge called “Author’s Express PDF,” which obligated BookSurge to print the book exactly as it was submitted In structuring contracts with freelancer-authors, publishers should consider the following without any additional fact-checking specific issues:1 or editorial services.49 The Calcagnis purchased 760 copies to give to friends Intention of independent contract: From the outset, all parties must understand that and sell to local bookstores. The book the author is entering into an independent contractor arrangement, which may vary from the was also available for purchase on author’s previous experience. Generally, the contract should refer to the hired party as “con- Amazon.com, where approximately 80 tractor” or “agent.” But do not abandon common sense when hiring an author as an indepen- copies were bought. dent contractor. Even an airtight independent contractual relationship can be overcome if the Plaintiff, Shana Sandler, filed a complaint for libel, false light, pub- contracting author had no business producing the work on his own. The publisher does not, of lication of private facts and punitive course, vouch for the author. But a “no” answer in discovery to the question, “Did you feel that damages, naming as defendants Mia you could trust this author to do a good job?” will not help anyone. Calcagni and her parents, Peter Mars Duties and responsibilities: The contract should contain a duties clause explaining the (the ghostwriter and fact-checker), task and the independent contractor’s responsibility in connection with that task. This is and BookSurge. Before the court were cross motions for summary judgment where the publisher should set forth length and general content requirements. Outline the pertaining to BookSurge’s liability. legal and stylistic expectations, but clearly state that all final determinations will be left to the The court granted BookSurge summary author’s sole discretion. judgment, and the remaining parties Editing: The right to edit for style alone is unlikely to impose liability upon the publisher. 50 later settled their claims. However, editing for substance may raise the concern that the independent contractor rela- The district court first distinguished tionship is a sham. Thus, the publisher’s risk of liability increases the more the publisher edits the meaning of the word “publication” in the context of defamation law, and an independent contractor’s work for content. concluded that merely because Book- Expenses and author’s tools: Include the independent contractor’s agreement to supply Surge participated in the publication his or her own facilities and supplies used to perform the job. It is advisable to require third- of Help Us Get Mia, that alone did not party fact-checkers and editors for less-experienced authors and potentially for all authors, 51 “ipso facto establish liability.” It then regardless of experience. Make clear that these services must be obtained at the author’s turned to the view of the Restatement (Second) of Torts, and that of Prosser own expense. Explain to authors the benefit of procuring their own services and why it is to and Keeton, that the defendants’ li- their creative advantage to work with their own hired help. But be sure to not mandate any ability turns on their involvement in specific persons or firms to contract with for editing and fact-checking purposes—though the defamation. Under Maine defama- putting together a suggested list of potential “trusted” firms may be helpful to steer the author tion law, fault must be proven at least in the right direction. to the negligence standard.52 Thus, the Intellectual property: Don’t forget copyright law. Be sure to include that the work will be court held that BookSurge would not be liable absent scienter—that it knew a work-for-hire and that the publisher retains all rights to re-publication and derivative works. or should have known of the libel.53 At the same time, include in the agreement a clause limiting the author’s ability to disclose Applying this negligence standard, proprietary information obtained during the independent contracting term. the court granted summary judgment in favor of BookSurge, finding that it did not know or have reason to know an author’s negligence), noting that a Courts are not entirely consistent, of the defamation in printing Help Us traditional publisher “pays the author however, in judging on-demand pub- Get Mia. The court held that because for the right to print a manuscript . . . lisher liability. In an unreported case BookSurge did not “undertake to edit, review a manuscript when it is received from 2006, Brandewyne v. Author review or fact-check any of its pub- to determine whether to accept the Solutions, a Kansas jury found Author- lications, it has no means or way of piece and pay the author . . . and edit House, another on-demand publisher, knowing whether defamatory mate- and improve the manuscript in coop- liable for defamation.57 The process by rial is contained within the works that eration with the author.”55 By contrast, which AuthorHouse publishes books is it publishes.”54 The court highlighted the court found that BookSurge would nearly identical to the process described the fact that, in this case, BookSurge print, publish, and distribute anything above concerning BookSurge. In 2003, had no involvement in the writing or submitted to it for publication, and AuthorHouse published a book entitled production of the book and was merely engaged in no editing, fact-checking, Paperback Poison: The Romance Writer paid by the authors to bind and print or review of the manuscript. It also and the Hit Man, ghostwritten under the the manuscript. Interestingly, the court noted that any editing or fact-checking byline of Gary Brock, the ex-husband contrasted BookSurge to traditional purchased through BookSurge was of best-selling romance novelist Re- book publishers (suggesting, without outsourced and performed by another, becca Brandewyne. Paperback Poison stating, that they would be liable for unaffiliated entity.56 made accusations that Brandewyne

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 4 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. defamation was wanton conduct, and the judge determines the amount.59 The jury found AuthorHouse’s conduct met that standard, and the judge awarded Compensation: Specify the financial arrangement—whether flat fee or commission $240,000 in punitive damages. In his based. Use the word “fee” rather than “salary” or “wage.” Of equal importance, emphasize written decision on punitive dam- ages, Judge Jeff Goering ruled that what is not included (i.e., health benefits, workers’ compensation, pension, 401k). Include an AuthorHouse ignored clear warnings express statement that publisher will not withhold any federal, state, or local income taxes, of potential libel, finding that “[e]very Social Security taxes, and the author assumes sole responsibility for appropriately submitting employee involved in the decision them. If payment is conditioned upon the submission of the finished product, explicitly state making process . . . had to have made that payment is contingent upon the author’s certification that the work is complete and ready a conscious decision to ignore a clear for publication, and that it has been thoroughly vetted, edited, and fact-checked. warning that the book was defama- tory, or to pass the buck on to someone Term and deadline: A term of contract should be set and a deadline for the completion else.”60 Given AuthorHouse’s knowl- of work. However, the contract should avoid descriptions of working hours, which would be edge of the content of the book, Judge inconsistent with independent contractors’ ability to set their own hours. Goering wrote that a “responsible Termination: Termination clauses should be drafted so that publisher’s ability to terminate publisher would make some effort to the agreement is based on the results accomplished or the freelancer’s failure to assume the screen the content of the book at issue in this case before accepting it for pub- risks and expenses contemplated by the agreement. In contrast, an unconditional termination lication” and that “AuthorHouse’s fail- right suggests a relationship with an employer-employee rather than independent contractor. ure to act when it had information that Warranty: The publisher should ensure that authors warrant, among other things, that (1) would have placed a prudent publisher they have the necessary equipment and ability to complete the project; (2) the work will be on notice that the content of [the] book solely that of their own creation; (3) the work will be performed in a high-quality, professional, was harmful to the Plaintiffs.”61 and timely manner; (4) authors will exercise reasonable care and diligence in performing Although the conclusions of Sandler and Brandewyne are contradictory, they their duties, including customary journalistic fact-checking and verification of sources and can be reconciled by looking to the ap- information; and (5) the work will not impair or violate anyone else’s right to privacy, rights of plication of the scienter element to the publicity, libel, infringement of copyright, or any other rights. specific facts in each case. In Sandler, Indemnification: An indemnification provision should allow publisher to defend and settle the court found BookSurge had no any claim made against the publisher where the freelancer breached his or her warranty. reason to know of the alleged defama- tion by virtue of its attenuated involve- The provision should make the freelancer liable for all the publisher’s costs, damages, and ment in the publishing of the book. attorney fees resulting from any claim, whether the claim is eventually held valid. Although In contrast, the court in Brandewyne freelancers may balk at the potential liability of such a contract, help them understand its found much greater involvement by benefits, including increased editorial freedom and complete content control beyond the AuthorHouse, as demonstrated by an general subject matter of the work. internal memo acknowledging that another publisher-on-demand previ- ously rejected the manuscript because 1. For an in-depth analysis of independent contract drafting issues in general, see Jacob Rabkin & Mark H. of its concerns with libel exposure. Johnson, Current Legal Forms with Tax Analysis, ch. 12, §§ 12.36, 12.61 & 12.62 (2007). The lesson to be drawn from these two cases is that in negligence cases, the publisher’s specific knowledge of the content of the book is critical. had adulterous affairs with men and demonstrating its knowledge that the women, abused her child, abused drugs, book had been rejected by another General Lessons from the Case Law plagiarized other authors, and hired publish-on-demand company because The brick-and-mortar, online, and on- a hit man to kill her ex-husband. The of concerns with libel. The judge found demand publishing case law discussed book also contained accusations about Brandewyne to be a private figure, and in this article may provide a road map Brandewyne’s parents and current hus- under Kansas law, gave jurors a negli- for publishers to maximize their use of band. Brandewyne and her family sued gence instruction as to the defamation the independent contractor defense. All her ex-husband Gary Brock, his current liability, and an actual malice instruction of the cases indicate that courts will look wife, the ghostwriter, and AuthorHouse for punitive damages. The jury returned most favorably upon publishers that for libel, invasion of privacy, and out- a verdict for plaintiff on all counts, appear to be as far removed as possible rage. Claims against Gary Brock were awarding libel and privacy damages of from the creation and editing of the dismissed without prejudice after he $200,000 to Brandewyne and $10,000 written work. Thus, the closer a work filed for bankruptcy, and all other defen- each to her parents and husband. is to immediate publication when the dants later settled except AuthorHouse.58 Kansas law calls for a bifurcated publisher first touches it, or the more a At trial, Brandewyne put forth hearing on punitive damages, in publisher relies on outside fact-checking an internal AuthorHouse memo which the jury determines whether the and editing services, the less likely it is

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 5 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. for the publisher to be held liable. While is difficult in that only upon legal action In 2005, the ABA Standing Commit- this may sound risky, especially with against the publisher do the interests of tee on Ethics and Professional Respon- unknown and unproven authors—and freelancer and publisher substantially sibility issued Formal Opinion 05–436, may not be acceptable under certain diverge. The Restatement (Third) of approving the use of advanced waiv- publishers’ standards and practices—the the Law Governing Lawyers states that ers under Rule 1.7, giving lawyers far law rewards the publisher for detach- when a lawyer attempts to represent an greater latitude in obtaining advanced ment and distance. organization, along with one or more conflict waivers from clients.74 It stresses In fact, it may be best to leave the persons associated with the organization, that the waiver’s effectiveness is “gener- retention of third-party editing and determining who is the lawyer’s client ally determined by the extent to which fact-checking services entirely to the “is a question of fact to be determined the client reasonably understands the author, to comport with the standard that based on reasonable expectations in the material risks that the waiver entails.”75 the independent contractor will supply circumstances.”64 Thus, the lawyer’s re- The committee notes that the more com- his or her own tools in the production sulting “failure to clarify whom the law- prehensive and detailed the explanation of the work. The tools of an author go yer represents in circumstances calling to the client is concerning the actual and beyond the act of writing to include for such a result might lead a lawyer to reasonably foreseeable consequences, research, fact-checking, and editing for have entered into client-lawyer relation- the more likely the client has the style and substance and to ensure that the ships not intended by the lawyer.”65 requisite understanding.76 General and final product complies with the law of As a result, if lawyers want to rep- open-ended waivers are typically only defamation. Similarly, communication resent both freelancer and publisher, sufficient where the client is an experi- between the publisher and author during they must obtain informed consent from enced user of legal services and has a the production of the manuscript should both clients. When undertaking a joint genuine understanding of the material be limited to questions of timing and representation, they must endeavor risks involved.77 The Restatement echoes delivery. Any additional communication in a two-part duty of disclosure to the the concern that open-ended advanced as to content should be restricted to pre- clients.66 First, lawyers must investigate waivers require a certain level of client serve the independence of the author and the “essential facts” and determine in sophistication for them to retain their curtail any potentially adverse inference their “professional opinion that interests effectiveness over time.78 A number of that the publisher participated in and are, in fact, common and not adverse.”67 jurisdictions have adopted their own ad- supervised the creation of the work. Second, they must “explain fully to each vanced waiver rules,79 while many juris- See the sidebar on page 8 for specific client the implications of the common dictions have adopted the amendments suggestions on drafting contracts with representation.”68 These conversations to the Model Rules in their entirety.80 freelancers. about conflict should be more than Rule 1.7(b) specifically prohibits the cursory. Candidly confront the possibil- representation of both clients in adverse Ethical Issues for Lawyers ity of conflicts and explain in depth the litigation claims against the other. To the Lawyers retained by publishers in these consequences of dual representation extent freelancers and publishers will circumstances need to be especially and conflicts of interest.69 Failure to be directly adverse is likely only where mindful of the ethical rules in deal- properly counsel and obtain informed both parties have lost a lawsuit and the ing with or additionally representing consent may result in possible dis- publisher must sue the freelancer for the freelancer. Like many media joint- qualification of the attorney and possible indemnification. It is then that the pub- representation arrangements, indepen- mandatory withdrawal. Other potential lisher will assert its contractual limitation dent contracting raises potential ethical consequences include preclusion of of liability and place sole responsibility problems for the lawyer.62 cross-examination or taking any adverse on the freelancer. By placing this specific For media lawyers, joint representa- position against a former client, thereby instance in the language of the waiver, tion typically is guided by respondeat limiting representation to your primary it will provide the requisite notice to the superior principles, where the employee client.70 Most obviously, joint representa- clients of this exact scenario. reporter, editor, and publisher share tion limits the ability to safeguard the In sum, the independent contractor common interests and goals and in turn attorney-client privilege and can increase and publisher relationship requires care- share in the liability.63 More issues arise, exposure to malpractice claims.71 ful counseling of all parties involved. however, when creating an arrangement A potential conflict may be mitigated Both freelancer and publisher should be that purposefully severs liability for by signing an advance waiver under Rule fully briefed so that they understand the the publisher, but not the author. These 1.7(b) of the Model Rules of Professional potential conflicts of interest and their include identification of the client, joint Conduct when (1) the lawyer believes impact on continued representation. The responsibilities, confidentiality, poten- he will be able to provide competent and moment any claim arises, the lawyer tially divergent objectives, and poten- diligent representation, (2) the repre- should analyze it for any potential con- tially adverse litigation positions. Except sentation is not prohibited by law, (3) flict and again counsel the client. for the possibility of directly adverse representation does not involve a direct litigation positions, the other potential claim of one client against the other, and Conclusion traps for the lawyer typically may be (4) each affected gives informed consent While there are many advantages of overcome through careful client counsel- in writing.72 Informed consent means the structuring the relationship between ing and obtaining certain waivers. lawyer has made adequate disclosure of publisher and author as an independent Identifying who is the client in the in- the risks and alternatives and the client contractor agreement, perhaps here more dependent contractor author arrangement has agreed to the course of conduct.73 than most areas of publishing law, facts

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 6 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. will rule the day. Simply drafting a tight 11. See, e.g., Carrasquillo v. Holiday Car- reason to foresee misconduct by the nurse). agreement will not alone ensure success pet Serv., Inc., 615 So. 2d 862, 863 (Fla. Dist. 21. 120 F.3d 1006 (9th Cir. 1997). if the performance does not comport Ct. App. 1993) (affirming summary judgment 22. Id. at 1008. with the contract. Thus, not only is for carpet cleaning company whose contrac- 23. Id. at 1011–12. careful planning needed in the drafting tor’s negligence injured plaintiff). 24. Vizcaino v. U.S. District Court for the but also in publisher follow-through to 12. Hill Bros. Chem. Co. v. Superior Western District of Washington, 173 F.3d 713 ensure that the relationship maintains an Court, 20 Cal. Rptr. 3d 530, 536 (Cal. Ct. (9th Cir. 1999). independent character and does not ap- App. 2004) (holding that summary judgment 25. See Steven Greenhouse, Technology: pear to be a sham. Independent contract- had been improperly granted for plaintiff who Temp Workers at Microsoft Win Lawsuit, N.Y. ing law can be a friend to both author was injured in negligent car crash by for-hire Times, Dec. 13, 2000. and publisher in these difficult times for carrier hired as independent contractor). 26. New York Times v. Sullivan, 376 U.S. the industry, allowing for increasingly 13. See, e.g., Tesillo v. Emergency Phys. 254 (1964). independent expression by encouraging Assocs., Inc., 376 F. Supp. 2d 327 (W.D.N.Y. 27. Anderson v. Liberty Lobby, 477 U.S. publishers to relinquish control in order 2005) (disputed issues of fact about extent of 242 (1986); Sullivan, 376 U.S. at 287. to lower legal risk. control hospital exerted over doctor precluded 28. Price v. Viking Penguin, Inc., 881 F.2d summary judgment for hospital). 1426, 1446 (8th Cir. 1989) (summary judg- Endnotes 14. Kleeman v. Rheingold, 614 N.E.2d ment for book publisher affirmed; “reckless 1. See Joe Strupp, Cuts like a Knife, Editor 712, 715 (N.Y. 1993). disregard must be proved with respect to & Publisher, Sept. 3, 2008. 15. See Restatement (Third) of Agency each defendant” and cannot be imputed if the 2. Restatement (Third) of Agency § 2.04 § 7.06 (2006). author is an independent contractor). (2006) (“An employer is subject to liability 16. See Atl. Container Line AB v. Aref 29. See, e.g., Nelson v. Globe Int’l, 626 F. for torts committed by employees while acting Hassan Abul, Inc., 281 F. Supp. 2d 457, 465 Supp. 969, 978–79 (S.D.N.Y. 1986) (grant- within the scope of their employment.”). (N.D.N.Y. 2003) (seller of used tires was not ing summary judgment in favor of magazine 3. See id. § 7.07 cmt. f (“For purposes of liable for the torts of its agent against com- publisher, considering author’s total control respondeat superior, an agent is an employee mon carrier contracted by agent to transport over the manner in which articles were writ- only when the principal controls or has the the tires). ten, notwithstanding editorial rewrites made right to control the manner and means through 17. See, e.g., Mireles v. Ashley, 201 S.W.3d by publisher); D.A.R.E. Am. v. Rolling Stone which the agent performs the work.”). 779, 784 (Tex. App. 2006) (reversing summary Mag., 101 F. Supp. 2d 1270, 1278 (C.D. Cal. 4. See Sandler v. Calcagni, 565 F. Supp. 2d judgment and remanding due to existence of 2000) (affirming summary judgment in favor 184 (D. Me. 2008) (holding that without proof material issue of fact as to whether company of magazine, despite author’s admissions as to of scienter, on-demand book publisher was not inquired into its independent contractor’s falsehoods in article, because the author was liable for defamatory statements made by au- competency to drive—in fact, company was an independent contractor; magazine exerted thor where publisher did not participate in the shown to have knowledge that the independent limited control over “the result of the work substantive editing and writing of the book). contractor driver had received eight citations and not the means by which it is accom- 5. See Restatement (Third) of Agency over a five-and-a-half-year period). plished,” the author was paid per article and § 7.07 (2006). 18. See Puckrein v. ATI Transport, Inc., not salary, and author retained staff position 6. Id. 897 A.2d 1034, 1044 (N.J. 2006) (reversing at another magazine during this independent 7. See, e.g., Tasini v. New York Times Co., summary judgment and remanding on issue contractor relationship); Chaiken v. Village 533 U.S. 483 (2001); Faulkner v. Nat’l Geo- of negligent hiring where waste disposal Voice Publ’g Corp., 119 F.3d 1018, 1033–34 graphic Enters., 409 F.3d 26 (2d Cir. 2005); company failed to inquire into whether its (2nd Cir. 1997) (affirming summary judgment Greenberg v. Nat’l Geographic Soc’y, 533 independent contractor haulers had proper for newspaper in libel action because reporter F.3d 1244 (11th Cir. 2008) (en banc) cert. de- insurance and registration). independently selected topics and conducted nied, 2008 WL 4451872 (U.S. Dec. 8, 2008). 19. Atl. Container Line, 281 F. Supp. 2d research, wrote articles without guidance, 8. See, e.g., East Point Condominium at 466 (defendant tire seller had no duty to was subjected only to edits by the newspaper, Owners Ass’n v. Cedar House Ass’n, 663 N.E. inquire into the entities independent contractor received payment per article, and did not re- 2d 343 (8th Dist. Cuyahoga County 1995) intended to ship tires to, and therefore plaintiff ceive benefits); Falls v. Sporting News Publ’g (finding contractor liable for the faulty work carriers who were harmed by independent Co., 899 F.2d 1221 (6th Cir. 1990) (applying of its subcontractors). contractor’s deceptive trade practices could Michigan law and concluding that weekly 9. See, e.g., Pershing v. United States, 736 not create issue of fact under negligent sports columnist was an independent contrac- F. Supp. 132 (W.D. Tex. 1990) (finding no selection sufficient to survive summary tor, notwithstanding the fact that his work was liability for United States because liability judgment—any other result would force the integral to the success of the paper; newspa- for job site injuries generally determined on principal to act as a guarantor of the indepen- per had the right only to edit the columnist’s the basis of control, and United States did not dent contractor’s conduct). work, the columnist was paid per column, did exercise the means and methods in performing 20. Id. See also Sandra M. v. St. Luke’s not receive benefits, and did not list the news- the construction work). Roosevelt Hosp. Ctr., 823 N.Y.S.2d 463, 467 paper on his tax return as an employer). 10. See, e.g., Adams v. Hilton Hotels, (N.Y. App. Div. 2006) (affirming summary 30. 747 F. Supp. 779, 787 (D.D.C. 1990). Inc., 787 N.Y.S.2d 238, 240 (N.Y. App. judgment in favor of hospital whose nurse 31. Id. (citations omitted). Div. 2004) (affirming summary judgment sexually assaulted a patient—negligent hiring 32. Id. at 788 n.7. for television station whose independent exception inapplicable because hospital, which 33. Id. contractor’s negligence assembling stage led used an independent contractor temporary staff- 34. Id. at 788. to decedent’s death). ing service for the selection of nurses, had no 35. After careful analysis of her work, the

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 7 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. court also awarded summary judgment to the Jones, Inc., 490 N.E. 2d 898, 902 (Ohio 1986) 83 F.R.D. 455, 463 (E.D. Cal. 1979)). author on grounds that plaintiff had failed to (finding no liability forWall Street Journal’s 54. Id. at 195. demonstrate clear and convincing evidence of inaccurate description of corporate bonds). 55. Id. at 194. actual malice. Id. at 797. 42. A notable outlier reliance case is 56. Calcagnis hired their own independent 36. See e.g., Naantaanbuu v. Abernathy, Rice v. Paladin Enterprises Inc., 128 F.3d fact-checker and editor, co-defendant Peter 816 F. Supp. 218, 226–27 (S.D.N.Y. 1993) 233 (4th Cir. 1997).The Fourth Circuit held Mars. Id. (publisher found not liable under “gross that a publisher was potentially liable as an 57. Brandewyne et al. v. AuthorHouse, irresponsibility” standard, it adhered to estab- aider and abettor when a murderer followed No. 04-cv-4363 (Dist. Ct. Sedgewick County, lished editorial procedure to ensure thorough instructions in a technical “how-to” for Kan. Aug. 2, 2006). See also MLRC Media- review); Price v. Viking Penguin, Inc., 881 hit men. The parties had stipulated to the LawLetter at 17–18 (Aug. 2006). F.2d 1426, 1446 (8th Cir. 1989) (affirming publisher’s knowledge and specific intent to 58. Claims against Debbie Brock and summary judgment for book publisher: target the book to would-be murderers. The the ghostwriter were settled for a combined “[R]eckless disregard must be proved with court concluded that the case was “unique in $9,000. Id. respect to each defendant” and cannot be the law” due to “astonishing stipulations . . . 59. Kan. Stat. § 60-3702(b). imputed if the author is an independent con- the notable absence from its text of the kind 60. MLRC MediaLawLetter, supra note tractor); Chalpin v. Amordian Press, 14 Media of ideas for the protection of which the First 57, at 17. L. Rep. 1206 (N.Y. Sup. Ct. App. Div. 1987) Amendment exists, and the book’s evident 61. Id. (magazine publisher’s unrebutted showing lack of any even arguably legitimate purpose 62. For an excellent and indispensable that it relied upon integrity of reputable author beyond the promotion and teaching of mur- treatment of joint representation of media and had no substantial reason to question ac- der. . . .” Id. at 267. clients, see generally Richard M. Goehler, curacy of information provided by author war- 43. 47 U.S.C. § 230(c). Bruce E.H. Johnson & Thomas S. Leather- rants summary judgment for publisher under 44. See Zeran v. AOL, 129 F.3d 327, 330 bury, Representing Media Clients and Their “gross irresponsibility”); Geiger v. Dell Publ’g (4th Cir. 1997). Employees in Newsgathering Cases: Traps for Co., 719 F.2d 515, 518 (1st Cir. 1983) (affirm- 45. See Chicago Lawyers Comm. v. the Unwary, ABA Comm. Lawyer, Summer ing summary judgment in libel action in favor Craigslist, 519 F.3d 666 (7th Cir. 2008) (hous- 2002, at 10. of book publisher, noting that publishers can ing website publisher not required to filter or 63. Id. only be held liable, under New York’s “gross screen for discriminatory content; imposing 64. Restatement (Third) of the Law Gov- irresponsibility” standard, if it had reason such a duty would make the service impracti- erning Lawyers § 14 cmt. f (2001). to believe that the author’s statements were cal or substantially increase its costs); Fair 65. Id. likely to be untrue); Adams v. Maas, 7 Media Housing Council v. Roommate.com, 521 F.3d 66. See Felix v. Balkin, 49 F. Supp. 2d 260 L. Rep. 1188 (S.D. Tex. 1981) (granting sum- 1157 (9th Cir. 2008) (housing website could (S.D.N.Y. 1999). mary judgment to publisher Bantam Books, not avail itself of the immunity provided to 67. Id. finding its reliance on authors did not amount operators in § 230 because it played a part in 68. Id. to a reckless disregard). developing the allegedly illegal content when 69. See id. 37. 938 F.2d 1033, 1036–37 (9th Cir. 1991). it solicited answers to discriminatory ques- 70. See United States v. Henke, 222 F.3d 38. Id. at 1037. tions and allowed its members to search based 633 (9th Cir. 2000). 39. Barden v. HarperCollins Publishers, on those answers). 71. See Goehler et al., supra note 62. Inc., 863 F. Supp. 41, 45 (D. Mass. 1994). 46. See www.booksurge.com/info/ 72. Model Rules of Prof’l Conduct, R. 40. Id. About_Us; http://www.authorhouse.com/ 1.7(b). 41. Numerous other courts have echoed AboutUs/index.asp; and http://www.lulu.com/ 73. See Model Rules of Prof’l Conduct. the refusal to create a duty on traditional en/products/?cid = en_tab_publish. R. 1.0(e). publishers based on a reader’s misplaced reli- 47. 565 F. Supp. 2d 184 (D. Me. 2008). 74. ABA Comm. on Ethics and Prof’l ance. See, e.g., First Equity Corp. v. Standard 48. Id. at 188–89. Responsibility, Formal Op. 05–436 (2005). & Poor’s Corp., 869 F.2d 175, 179–80 (2nd 49. Id. at 189. See also Alice E. Brown, Advance Waivers of Cir. 1989) (investors who relied on inaccurate 50. See Notice of Settlement of All Parties, Conflicts of Interest: Are the ABA Formal Eth- financial publications to their detriment were Sandler v. Calcagni, Docket No. 07-cv-29, ics Opinions Advanced Enough Themselves?, unable to recover their losses); Jones v. J.B. Doc. #170 (D. Me. filed Sept. 4, 2008). 19 Geo. J. Legal Ethics 567 (2006). Lippincott Co., 694 F. Supp. 1216, 1216–17 51. Sandler, 565 F. Supp. 2d at 193–94. 75. ABA Formal Op. 05–436, supra note 74. (D. Md. 1988) (finding no liability for 52. Maine generally follows Restatement 76. Id. publisher of nursing textbook when nursing view that “one who only transmits defamatory 77. Id. student alleged that she injured herself with a matter published by a third person is subject 78. Restatement (Third) of the Law Gov- home remedy described in nursing textbook); to liability, if, but only if, he knows or has erning Lawyers § 122 cmt. d (2000). Lewin v. McCreight, 655 F. Supp. 282, 283 reason to know of its defamatory character.” 79. See D.C. Bar Legal Ethics Comm., Op. (E.D. Mich. 1987) (publisher found not liable Sandler, 565 F. Supp. 2d at 193 (quoting 309 (2001) (holding that advanced waivers are to plaintiffs injured in explosion after mix- Restatement (Second) of Torts § 581). See generally not prohibited); N.Y.C.L.A. Comm. ing chemicals in reliance on metalsmithing also Levinsky’s Inc. v. Wal-Mart Stores, Inc., on Ethics, Op. 724 (1998) (holding that as book); Alm v. Van Nostrand Reinhold Co., 127 F.3d 122, 128 (1st Cir. 1997); Lester v. an ethical matter there is no bar to seeking a 480 N.E.2d 1263, 1267 (Ill. Ct. App. 1985) Powers, 596 A.2d 65, 69 (Me. 1991). waiver of future conflicts). (publisher not liable to plaintiff whose injuries 53. See Sandler, 565 F. Supp. 2d at 194 80. Brown, supra note 74, at 574. stemmed from reliance on a book’s instruc- (quoting Maynard v. Port Publ’ns, 297 N.W. tions on how to make tools); Gutter v. Dow 2d 500, 506 (Wis. 1980); Lewis v. Time, Inc.,

Published in Communications Lawyer, Volume 26, Number 2, March 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 8 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.