Libel Claim Properly Dismissed; “Common Criminal” Remark Was Nonactionable Opinion

Defamation claims are not easy to prove. One (substantial) hurdle that a defamation plaintiff must overcome is demonstrating that the alleged defamatory remark was a false statement of fact, rather than (non-actionable) opinion. This is illustrated by a recent court decision, Cardali v. Slater, 2018 NY Slip Op 08544 (App. Div. 1st Dept. Dec. 13, 2018).

In this case, the plaintiff (Cardali, an attorney) sued his former employee (attorney Slater) for defamation. As explained in the underlying decision:[1]Cardali v. Slater, 2017 NY Slip Op 27180, 56 Misc3d 1003 (Sup. Ct. NY Cty. May 18, 2017).

While at the Cardali firm, one of the clients Slater [defendant] represented, and with whom he built a rapport, was Mr. Spence. After Slater left the firm, he discovered that Mr. Spence was a victim of Cardali’s double-billing scheme; outside counsel costs for farmed-out trial-level legal work were billed and hidden as “appellate work” even though there was no appellate work on the case whatsoever. Mr. Spence was overcharged $8,400 that Cardali paid to an outside firm on a motion for summary judgment; again, if Cardali wanted to pay someone to make or oppose a motion, that is allowable. But if Cardali paid another lawyer to make or oppose a motion, that lawyer’s fee ought to have come out of Cardali’s share of the recovery; that is, Cardali should have paid that lawyer himself. Clearly, charging the client for outside counsel fees and collecting the full contingency fee is double-billing. Slater wrote to Anthony Broccolo, another experienced attorney at the firm, the following note: “Anthony—Rob [Cardali] put my reputation and career in jeopardy because of what he did, in my opinion on Spence. For that reason, he is nothing more than a common criminal. Feel free to show this to whoever you wish to. RNS [Richard Slater].” 

[Emphasis supplied by court.]

In upholding the dismissal of plaintiff’s libel per se claim, the Appellate Division explained:

The libel per se claim was properly dismissed because Slater’s statement that Cardali was “really nothing more than a common criminal” is a nonactionable statement of opinion … . The phrase has an imprecise meaning that is not capable of being proven true or false and, when read in context, no reasonable reader would understand it to be accusing Cardali of having been charged with or convicted of an actual crime[.]

This case is thus instructive as to not only as to the substantive law of defamation, but also (albeit peripherally) as to potentially problematic billing practices – specifically, what costs may be charged back to a client when calculating a contingency fee.

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1. Cardali v. Slater, 2017 NY Slip Op 27180, 56 Misc3d 1003 (Sup. Ct. NY Cty. May 18, 2017).