In Frechtman v. Gutterman, the Appellate Division, First Department affirmed the dismissal of a defamation claim brought by an attorney against his clients. Specifically, the court held that the complained-of-statements were non-actionable opinion, and were protected by absolute and qualified privileges.
Plaintiff, A. Bernard Frechtman, a practicing attorney for more than 60 years, brought this action against his former clients for defamation, alleging that three letters signed by defendant Allen Gutterman, each of which terminated Frechtman’s employment as attorney in a particular named matter, contained defamatory statements. The relied-on statements include: “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.”
Since “the complained-of statements disparage plaintiff in his profession[,] [t]hey may therefore constitute defamation if they amount to false statements of fact, rather than opinion, if they were published to a third party, and if they are not protected by a privilege.”
The court agreed with the plaintiff that he sufficiently pleaded the “publication” requirement. Specifically, since he alleged that the letters “were typed at Gutterman’s direction by a person or persons employed by defendants, the requirement of publication of the defamatory statements to a third party is satisfied.”
The court concluded, however, that “the complained-of statements are non-actionable expressions of opinion, rather than assertions of fact.”
In assessing whether the challenged statements are non-actionable opinion or assertions of fact, the following factors are to be considered:
(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read or heard is likely to be opinion, not fact.
The court continued:
Of course, words that sound like an opinion may be actionable where the statement implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it. The actionable element of a mixed opinion’ is not the false opinion itself — it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.
It is most important to look at the content of the whole communication, its tone and apparent purpose, rather than first examin[ing] the challenged statements for express and implied factual assertions, and find[ing] them actionable unless couched in loose, figurative or hyperbolic language in charged circumstances.
Applying these principles, the court concluded that the statements in question were opinion:
Considering the full content of the statements at issue here, including their tone and . . . apparent purpose, their broader context and their surrounding circumstances, the challenged statements are better understood as opinion than as fact. We come to this conclusion not because the statements are preceded by the phrase “We believe,” but because of the context in which they were made. [E]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole. While the use of words such as “misconduct” and “malpractice” may, viewed in isolation, seem to be assertions of provable fact, or claims supported by unstated facts, viewed in their context, these statements amount to the opinions and beliefs of dissatisfied clients about their attorney’s work.
Furthermore, the court agreed with the defendants that the letters were protected by both absolute and qualified privileges.
As for the absolute privilege:
In the context of a legal proceeding, statements made by parties and their attorneys in the context of litigation are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation. Although the rule refers to proceeding[s] in court or … before an officer having attributes similar to a court, the concept of statements in the course of judicial proceedings has been treated as embracing letters between litigating parties and their attorneys, relating to litigation.
In addition, precedent supported applying the absolute privilege to “a letter sent by a client to his or her attorney discharging the attorney”.
As to the qualified privilege:
Even if the absolute privilege were inapplicable, the statements contained in defendants’ letters would be subject to a qualified privilege as communications upon a subject matter in which both parties had an interest. …
A client’s letter to an attorney terminating the attorney’s services and explaining the client’s perceived grounds for the termination qualifies as a communication on a subject in which sender and recipient have a shared interest.
The court concluded:
The threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself. As a matter of public policy, which should protect open and honest communication between attorneys and their clients, clients must be permitted to make such claims, or complaints, directly to their attorneys, and to their attorneys alone, without threat of a lawsuit.