Was the Client’s Discharge Letter Defamatory?

Frechtman v Gutterman,

115 A.D.3d 102, 979 N.Y.S.2d 58 [1st Dept., 2014]

When a client discharges his lawyer in a letter, the statements made in the letter are privileged and the lawyer has no claim for defamation, even if the letter makes accusations of malpractice which in other contexts might be actionable.

The statements here included these:

“We do not believe you adequately represented our interest,”
“We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice, and negligence,”
“We believe that your future representation on this matter only became necessary, as a result of mistakes and oversights made by you acting as counsel,” and
“[W]e believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought.”

The lawyer here sued for defamation, and the defendant moved to dismiss for failure to state a cause of action. Supreme Court dismissed the action, and the First Department affirmed.

As a fascinating preliminary matter, the court held in the plaintiff’s favor on the requirement of the publication of the comments. Following Judge Cardozo in Ostrowe v Lee, 256 NY 36 [1931], the court held that at this preliminary pleading stage publication was sufficiently established by by the mere fact that the letter had been dictated by the defendant to his secretary.

Plaintiff failed to state a cause of action, however, as to the defamatory nature of the statements themselves. The court subjected the statements to three levels of analysis, finding against the lawyer on each. First, while the statements certainly disparaged the plaintiff in his profession they were not, in fact, defamatory since they were mere statements of opinion and not statements of objective fact.

Second, even if they had been false statements of fact the client was protected by the absolute privilege which attaches to communications between lawyer and client during litigation.

Third, even if they were not protected by an absolute privilege, they were protected by the qualified privilege for communications between persons with an interest in the subject matter. Finally, the court noted that the interests of full communications between attorney and client required that the client be allowed to make such statements without fear of being sued.

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