The far-reaching impact of the internet and social media can be felt in nearly every industry these days. Recently, it has made its way into legal opinions concerning allegedly defamatory statements made by and about attorneys and other professionals on Facebook, Twitter, and even attorney review sites such as Avvo.com.

As most attorneys may have learned by their second year of law school, defamation falls under two categories: libel (written defamatory statements) and slander (verbal defamatory statements).[1] In the context of an attorney-client relationship, defamation claims can often be brought against an attorney in connection with statements made by him or her in motion papers, depositions, or even open court; however, these statements are generally protected.[2]  

Recently, there has been somewhat of a role reversal in which attorneys are now bringing suit against former clients for negative statements made online, usually in the form of a consumer review. This article discusses current legal issues presented by defamation claims arising out of negative statements made about an attorney online and through social media, as well as the level of proof required for the attorney to recover a monetary award for alleged damage to his or her reputation.

Negative Client Reviews

The increase in social media use and consumer review websites has created a more accessible medium for disgruntled clients to publicly voice their grievances about their attorney or former attorney. The rise in these online platforms has borne a virtually instant method for an individual to transmit a negative statement to thousands, if not millions, of readers free of charge. Another factor which seems to encourage the spread of negative online reviews is the option of anonymity afforded to the poster. Regardless of the increasing ease in publishing one’s views and opinions, an attorney or other professional may nevertheless face a steep burden to recovery for alleged reputational harm resulting from a negative client review.

In Lynn & Cahill LLP v. Nadine Witkin, the plaintiff attorney sued his former client for a review she posted online calling him, among other things, “a bully,” “unethical,” and “sleezy.”  The trial court entered a default judgment finding the statements to be libelous per se and awarded Cahill $125,000 in damages for the negative impact he claimed the statements had on his professional reputation.  On appeal, the New York appellate court reduced the award to only $100, stating that the evidence (or lack thereof) concerning the harm to Cahill’s reputation did not support anything more than a “nominal” amount.[3]

Nearly four months later, the Florida Court of Appeal upheld a six-figure award to an attorney for damages resulting from her defamation case against a former client. In Copia Blake, et al. v. Anne-Marie Giustibelli, P.A., et al., Attorney Giustibelli represented Ms. Blake in a divorce proceeding and, after a breakdown in the attorney-client relationship, Blake posted negative reviews of Attorney Giustibelli on several internet websites which accused Giustibelli of, among other things, dishonesty and submitting invoices for legal fees “four times” her original agreed upon rate.[4]  In response, Giustibelli sued Blake for libel and recovered an award of $350,000 in punitive damages. 

In affirming the award on appeal, the Florida Court cited to the demonstrated falsity of Blake’s statements – i.e., Giustibelli introduced evidence that Blake had been billed at the rate indicated on the retainer agreement she executed, not four times that amount.  Even in spite of Blake’s defense of free speech under the First Amendment, the Court found the negative reviews constitutionally unprotected because the evidence of their falsity undermined their classification as mere “opinions” as argued by Blake.

“Show Me the Damages”

While upon first glance, it could seem that the Cahill and Blake decisions indicate that an attorney’s recovery for a defamation claim may depend upon the jurisdiction in which he or she sues, a closer look at the courts’ rationales suggests that – as in any legal case – evidence is key.  The manner and specificity of the negative statements may also be a determinative factor in the court’s analysis of what types of statements warrant six-figure versus “nominal” awards.

In Cahill, no matter how provocative or incendiary the negative statements might have been (e.g., a “greedy, crazed nutjob”), the New York appellate court reduced Cahill’s award because it did not find sufficient evidence that the statements (albeit libelous per se) resulted in quantifiable reputational harm. In Blake, the defamatory statements accused the attorney of specific misconduct, which the attorney was able to disprove with evidence. Although neither court precisely stated so in its decision, it seems that “reputational harm” may be too easily pled and too difficult to enumerate. The holdings suggest that actual reputational harm warranting a substantial monetary award may result from specific and unsubstantiated defamatory statements, rather than mere statements defaming the attorney’s character generally. Requiring a heightened burden of proof for damages may signal the courts’ resistance to a “slippery slope” of excessive defamation claims and punitive awards if negative online reviews may only become more ubiquitous. 

Conclusion

It may seem logical that a negative online review attacking an attorney’s character and integrity may cost that attorney future business; however, that cost may not be so easily quantifiable in the eyes of the Courts – at least not without objective evidence to support the alleged harm. Given the immeasurable number of online forum in which a client can voice his or her grievances, there are more occasions in which attorneys and other professionals may feel the need to defend their reputations in court. But, according to recent legal decisions, defending one’s professional reputation may be just that – a defense, and not necessarily an affirmative right to significant monetary recovery.

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* This article was prepared by Andrew R. Jones, Esq. and Stefanie A. Singer of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Stefanie work as part of a team of 15 lawyers devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters.  For more information about the above topic or the authors, please visit: www.fkblaw.com.

We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.

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[1] For example, in New York, to assert a cognizable claim for defamation, a plaintiff must show: “(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm.” Stepanov v. Dow Jones & Co., Inc., 120 A.D.3d 28, 34 (1st Dept. 2014).

[2] Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue being resolved in the proceeding.  See Sexter & Warmflash, P.C. v. Margrabe, 828 N.Y.S.2d 315, 323, 38 A.D.3d 163 (1st Dept. 2007).

[3]Lynn & Cahill LLP v Witkin, 130 A.D.3d 484, 2015 NY Slip Op 06020 (1^st Dept. 2015).

[4] Blake v. Ann-Marie Giustibelli, P.A.,182 So. 3d 881 (Fla. Dist. Ct. App. 2016).