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By Irving O. Farber, Esq.

In Lynn & Cahill v Witkin, 130 AD3d 484 [1st Dept 2015], the Appellate Division 1st Department recently reversed a Lower Court’s significant award of damages in a defamation matter, a ruling that should make attorneys throughout the State take notice.

Lynn & Cahill involved a former client who, in an internet post, viciously maligned and impugned the Lawyer’s reputation by referring to him as “a confidence man”, and accusing him of being “unethical”, “sleazy”, “dangerous”, “a rotten egg”, and a “greedy, crazed and irrational nut job.”

Understandably Plaintiff, John Cahill (a principal at the former Lynn & Cahill with an unblemished professional record) brought suit alleging Libel per se, and sought damages for the harm to his professional reputation.

The Lower Court, after rendering a Default Judgment and having held an Inquest, awarded Mr. Cahill $75,000.00 compensatory and $50,000.00 in punitive damages. However, upon appeal the 1st Department reduced this award to the nominal amount of $100, saying without further explanation that the “evidence does not support an award of more than nominal damages or any punitive damages.”  Evidently, the Lower Court came to its award of damages having been guided by its own estimation of damage to reputation in relation to proper compensation. In short, it seems that the Appellate Division was saying the attorney failed to prove actual and ascertainable financial damages as a consequence of the clear Defamation that had been visited upon him, which is not an evidentiary requirement in per se cases.

So much for the value of an attorney’s good reputation.  This suggests also they did not think, that although the defamatory statements related to the attorney’s reputation as an attorney, the statements were not per se defamatory, as the lower Court held.

In a statement to the New York Law Journal the attorney aptly noted:  “We live in a world where attorneys and other professionals are subjected to lies about them, and it is very hard to prove money damages.  Any one of us, including judges, could wake up one day to a Google search of their name that returns a top result saying they are actually a heinous criminal.”

“Can I prove that some prospective client read the post and decided not to hire me on the basis of it?” attorney Cahill asked.  That’s a tough proof problem, but there should be some consequences.”

This case is emblematic of the frustration and lack of reward behind defamation cases in general.  Even if you think you have a “slander per se” case, where you need not show special damages, your final reward of nominal damages is hardly rewarding.  I speak from experience, and having handled both sides of these types of cases.  I can say from Plaintiff’s perspective the rewarding case has good liability and substantial provable damages.  For the unfortunate defendant’s, they must be prepared for arduous and expensive defense.

The Comment to PJI 3:42.2 is an excellent summary of the Law governing “slander per se” and its introduction of the subject is instructive:

The label “slander per se” means that the defamatory words are actionable without proof of special harm, i.e., financial loss.  All other slander, typically called “plain slander” or “slander per quod”, is actionable only if plaintiff pleads and proves special harm, Edelstein v Farber, 27 AD3d 202, 811 NYS2d 358; Harris v Hirsh, 228 AD2d 206, 643 NYS2d 556; Privitera v Phelps, 79 AD2d 1, 435 NYS2d 402; Danko v F. W. Woolworth Co., 29 AD2d 855, 288 NYS 2d 509.  Thus the rules governing slander differ from those governing libel since libel on its face is actionable without proof of special harm.  Occasionally courts use the term “libel per se;” however, it is the single instance rule, previously discussed, that is being employed that requires proof of special damages in libel cases, see e.g. Clemente v Impastato, 274 AD2d 771, 711 NYS2d 71.  The differing treatment afforded libel and slander has been explained in the widely quoted words of Chief Judge Cardozo: “Many things that are defamatory may be said with impunity through the medium of speech.  Not so, however, when speech is caught upon the wing and transmuted into print.  What gives the sting to the writing is its permanence of form.  The spoken word dissolves, but the written one abides and ‘perpetuates the scandal’,” Ostrowe v Lee, 256 NY 36, 39, 175 NE 505.

There are four categories treated as slander per se:  statements imputing incompetence or dishonesty in plaintiff’s profession or trade; words imputing the commission of a serious crime; words imputing that plaintiff suffers from a loathsome disease; and words imputing serious sexual misconduct to another.”

But, to repeat, the fact the important causality problem of proving damages is eliminated from a “per se” libel case should not gladden the plaintiff’s Lawyer’s heart, because in the end you are likely to wind up “broken hearted” with little to show for an otherwise extraordinary litigation effort.  Unless, of course, you are taking on the case on behalf of a client, who after being fully informed on the law of defamation and all the legal hurdles involved, is willing to financially invest legal costs in their professed quest to protect their reputations.

Finally, before embarking on (what is always contentious Litigation) consider and carefully mull over the PJI’s “Introductory Statement” to the subject of Defamation (PJI 3:23):

“Defamation, more than any other tort, defies synthesis and logical organization.  Prosser states that “there is a great deal of the law of defamation which makes no sense.  It contains anomalies and absurdities for which no legal writer ever has had a kind word . . . .” Prosser & Keeton, Torts (5th Ed) 771, § 111.  Shapo characterizes defamation as “coated with historical ooze . . . . “ Shapo, Tort and Compensation Law 63; and Pollack declares that no area of law is “more perplexed with minute barren distinctions . . . .” Pollack, Torts (13th Ed) 243.

While historically governed entirely by State law, defamation has undergone a dramatic constitutionalization, starting in 1964 with New York Times Co. v Sullivan, 376bUS 254, 84 SCt 710.  Although the common law elements and rules still play a highly significant role, the Tort cannot be properly understood without a full appreciation of the constitutional constraints that, to a large extent, limit the state’s ability to impose liability.”

. . . . to lessen the confusion that has surrounded this area of the law (the Introductory Statement simplifies) archaic terminology and by providing an overview of defamation, including its common law elements and the significant modifications required by constitutional developments.  . . . .”

In describing the terminology of defamation cases, the comment continues with this intimidation:  “Defamation is characterized by traditional but archaic phrases which have served more to confuse than to enlighten.  . . . .”  Consider, for example the recent Court of Appeals decision in Front & Khalil & Kammel, 24 N.Y. 3d 713 decided this past February 24, 2015.

In Front, the attorney for the plaintiff had sent the defendant a letter prior to instituting litigation that he should cease and desist violation of his employment contract with plaintiff, such as unlawfully diverting business opportunities belonging to his former employer, the plaintiff.  In what would seem to be a transparent legal ploy to capitalize on scorched earth litigation tactics, a third party action was brought against the attorney in order to conflict him out of the case.  The lower Court denied the disqualification motion.  The Appellate Division sustained the dismissal and as well noted the lawyer’s “cease and desist” letter was absolutely privileged, based on longstanding law that statements made by Lawyers connected with judicial or quasi-judicial proceedings are absolutely privileged, including those made in anticipation of litigation.  The Court of Appeals sustained the dismissal, but on public policy grounds, resolved disagreements among various appellate divisions as to whether an attorney’s statements prior to litigation should be entitled to either an absolute privilege or a qualified privilege.  The Court of Appeals felt that “applying an absolute privilege to statements made during a phase prior to litigation would be problematic and unnecessary to advance the goals of encouraging communication prior to the commencement of litigation” hence “the privilege should be qualified” as long as the statements are made by the Lawyer “in good faith.”  This standard, therefore, “does not protect attorneys who are seeking to bully, harass, or intimidate . . . by threatening baseless litigation or by asserting wholly unmeritorious claims.”  (24 N.Y. 3d at 720).

While the Court of Appeals intent is laudable, it is unrealistic to expect that the bullying the Court of Appeals rightfully condemns will be ameliorated by this decision.  Put another way, the decision implicates Part 130 of the rules of the Civil Court and how often is that effective?  In the experience of this writer, not at all.

As Prosser noted, “there is a great deal of the law of defamation that makes no sense” (supra.), and when lawyers are themselves a party in such lawsuits, there is no greater sense or clarity to the rules governing defamation than in other defamation cases.


Irving O. Farber, Esq., a Bashian P.C. partner, gratefully acknowledges the contributions to this article by his colleagues Gary E. Bashian, Esq. and Andrew Frisenda, Esq.

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