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I received a nasty gram from an opposing attorney making false claims…

I received a nasty gram from an opposing attorney making false claims about me that was also published to others, do I have a defamation claim against the opposing attorney?

16 December 2019

Answer:  Maybe, it depends on the facts.  Below appears an example where a person like you had a claim.

In The Patriot Games, LLC v. Edmunds the defendant was an attorney that sent a letter largely drafted by his client to the plaintiff and a few other entities.  96 Mass. App. Ct. 478, 480-81 (2019).  The defendant’s client then went and posted the letter on the Internet that reached a wide audience.  The letter falsely stated that the plaintiff committed tax fraud, inter alia, and that the plaintiff’s client had filed whistleblower claims with the Internal Revenue Service and the Securities and Exchange Commission concerning same.  The defendant initially was successful in having the defamation claim dismissed by arguing his allegedly wrongful acts were covered by the litigation privilege.  Id. at 482-83.  The litigation privilege shields parties and their attorneys from defamation claims prior to and during a legal/judicial or quasi-legal/judicial proceeding.  Id. at 486.  The trial court apparently believed that there were indeed whistleblower claims filed, when in fact it was later determined that there was not enough evidence to make that conclusion.

Upon appeal, the plaintiff was successful in having the trail court’s decision reversed as it found the litigation privilege did not apply.  Specifically, the appeals court found that, since there were no actual whistleblower claims filed, the litigation privileged did not apply to the letters.  Id. at 485-86.

The appeals court went on to state how it would rule and whether the litigation privilege would apply if the defendant’s client had indeed filed the whistleblower claims with the IRS and SEC.  Id. at 486.  In doing so, it observed established law meant to apply to the question of whether a legal proceeding was “judicial or quasi-judicial in nature.”  That is supplied by Fisher v. Lint, 69 Mass. App. Ct. 360 (2007) and states that a sufficiently quasi-judicial proceeding is one that includes the “right to counsel, the rights to present evidence, the right to cross-examine adverse witnesses, and the threat of perjury.”  69 Mass. App. Ct. 360, 369 (2007).  It noted that none of those elements apply to a whistleblower claim with the IRS or SEC, and for that reason, the litigation privilege would not even have applied if the defendant’s client had made the claims.

Another part to the decision was that the defendant claimed that his letter for his client was covered by the litigation privilege because there was an on-going bankruptcy case occurring at the time.  However, the appeals court found, as did the trial court, that it did not because the letter did not concern the bankruptcy case and that defendant was not counsel of record in it either, but rather the client was represented by a different attorney in the bankruptcy case.  Thus, when the defendant sent the letter for his client, he “was not ‘engaged in his function as an attorney.’”  Id. at 488.

Notice that the plaintiff had a significant battle to maintain its claim against the defendant as it took a trip to the appeals court.  This is one reason careful analysis and planning, including the identification of expected defenses and outcomes, needs to occur beforehand.  In the event you believe you have a defamation claim against an attorney, feel free to give this office a call.