The Texas Supreme Court has rebuked an effort by prominent plaintiff’s attorney Tony Buzbee to deploy the Texas Citizen’s Participation Act (TCPA) to shield him from liability for media advertising that defamed an El Paso physician. In an order handed down this morning, the Court declined review in Buzbee and The Buzbee Law Firm v. Canales (No. 21-0349) on appeal from the El Paso Court of Appeals.
The case arose from a series of advertisements placed by the Buzbee Law firm in El Paso media identifying Dr. Canales, some of which asked: “Did Dr. Roberto Canales kill or hurt your child?” Other ads stated that the firm was “investigating claims for parents whose children died while undergoing treatment by Dr. Canales,” even though Buzbee only represented one client with such a lawsuit. Examples of the advertisements appear below:
Dr. Canales sued Buzbee for defamation and disparagement. Buzbee responded with a motion to dismiss under the TCPA, claiming that the ads were protected speech because they were intended to locate witnesses and not to solicit business for the firm. Dr. Canales replied that the ads constituted commercial speech, which is specifically excluded from the TCPA. The trial court agreed and denied Buzbee’s TCPA motion to dismiss. The El Paso Court of Appeals affirmed.
On appeal Buzbee once again argued that the ads did not constitute commercial speech because they did not solicit clients. He also made the somewhat stunning argument that Dr. Canales presented no proof that the Buzbee or his firm actually provided legal services. Dr. Canales’s reply pointed out that the Buzbee firm widely advertises its services based on its record of success in obtaining large jury verdicts and his reputation as a “go-to” trial lawyer. The El Paso Court easily saw through the smokescreen and found that Buzbee is primarily engaged in selling legal services and that the ads in question were placed primarily for that purpose. Indeed, in addition to the El Paso Court, the Tyler, Amarillo, and San Antonio courts of appeals have ruled that lawyers and law firms representing clients are primarily engaged in the business of selling legal services. See Winstead PC v. USA Lending Grp., Inc., No. 12-20-00172-CV, 2021 WL 1047208, at *4 (Tex. App.—Tyler Mar, 18, 2021,pet. filed) (mem. op.); Kostura v. Judge, No. 07-20-00310-CV, 2021 WL 2325336, at *4 (Tex. App.—Amarillo June 7, 2021, pet. filed) and; Grable Grimshaw Mora, PLLC v. Christopher J. Weber, LLC, No. 04- 21-00064-CV, 2021 WL 3057500, at *3 (Tex. App.—San Antonio July 21, 2021, no pet. h.) (mem. op.). The El Paso court likewise dismissed Buzbee’s characterization of his firm’s business as “self-serving” and not particularly credible.
We applaud the courts of appeals around the state for their common-sense approach to applying the TCPA’s commercial speech exception in the legal services context. At the same time, this case demonstrates how some plaintiff’s firms continue to push the envelope in media advertising for new clients.