Larry Birkhead & Howard K. Stern: R the Rumors True? Will Larry Sue?

Posted on Sep 3, 2007 in Celebrity Justice

blondeambition3.jpgLarry Birkhead is mad as a hornet, telling TMZ.COM that he’s going to sue author (and former MSNBC correspondent) Rita Cosby as well as “other individuals … over confidential information in my custody case” if the rumors (click here to read them) about what’s in Cosby’s new book, Blonde Ambition: The Untold Story of Anna Nicole Smith’s Death, are true.

Larry Birkhead’s also threatened anyone who prints excerpts or other information from the book with a lawsuit too — including OK! Magazine, who is scheduled to spotlight the book in its next issue.

Of course, on the same day, OK! Magazine cancelled its $1.7 million deal with Larry Burkhead for an exclusive photo shoot of DannieLynn’s first birthday.  E!News quotes OK!’s editor’s explanation that the cancellation was due to OK!’s discovery of “explosive” and “shocking” allegations that “would not allow” OK! to promote what it’s calling “this family’s highly questionable relationship.”  Larry says OK! is just mad because he’s made another million-dollar deal with US Magazine for a cover story on DannieLynn.

Larry Birkhead tells TMZ that it was author Rita Cosby who referred him to attorney Debra Opri, and it’s reasonable to assume that his reference to “others” with confidential information about the custody fight includes his former lawyer.

So, what’s the legal skinny on this? Will Larry Burkhead sue? Sue who?

Larry’s already sued his lawyer over attorneys’ fees (including allegations of fraud, etc.) – which brings all the activities that Debra Opri did on his behalf into question.  One of the risks of suing your lawyer is putting your lawyer in a defensive position, where the court allows formerly confidential information to be used in court in order to prove that the lawyer did not fall short, somehow.

In other words, Larry lost the full protection of the attorney-client confidentiality shield when he sued Debra Opri.  Anything in her files could, therefore, make its way through the discovery process and into the hands of a member of the public.  Say, her journalist friend, Rita Cosby.

Rita Cosby should know to document her sources, and to protect herself against libel — as would her publishers’ attorneys (Grand Central Publishing).  So, expect the book to be published and the OK! coverage of the book to go forward.  Heck, it’s already on sale at Barnes&Noble.Com and on Amazon, where it was ranked 157 as of the time of this posting.

Debra Opri, Rita Cosby, Grand Central, and OK! have already prepared for Larry’s grandstanding here.  (And, Howard’s too, for that matter.)

Will Larry sue?  Maybe.  Will he win?

Depends upon what those documents are – are they just innuendo, like Debra’s own personally imaginative notes, or are they solid, like sworn witness statements?

And, it depends upon what those documents hold – do they have facts that give concrete support to the allegations made in the book?  are they just guesswork and gossip?

Libel is written defamation of character, and both actual and punitive damages can be assessed for the victim.  Truth is a defense to libel.

If the information is false, Larry must also show that it was printed with malice (which sounds like he’s already arguing) to prove his case.  His burden may be easier: some of these scandalous statements may be “defamation per se” — statements so offensive that the courts find their publication to be automatically harmful.

Best guess: Larry Birkhead will sue Rita Cosby, maybe try to block release of the book, and he’ll expand his lawsuit against Debra Opri to include release of this information, arguing that it exceeds the scope of revelation necessary to prove up the attorneys’ fees arrangement that they had in the Anna Nicole – Dannielynn custody case.  Stronger case: the one against Opri – if she’s the source, and she didn’t have to release any of this stuff to prove her defense in the attorneys’ fees suit, then she’s got problems here.  �

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