By Samson Habte
Jan. 8 — A recent Florida appellate decision may give hope to lawyers who want to deter dissatisfied clients from posting nasty comments about them online.
Demonstratively false allegations of dishonesty a former client made in online reviews of a divorce attorney were held not protected by the First Amendment, and the client and her husband must pay the lawyer $350,000 for defaming her, according to a Jan. 6 decision of the Florida District Court of Appeal, Fourth District (Blake v. Ann-Marie Giustibelli, P.A., 2016 BL 1940, Fla. Dist. Ct. App. 4th Dist., No. 4AD14-3231, 1/6/16).
The six-figure defamation judgment for attorney Ann-Marie Giustibelli turned on a trial judge's finding that comments a former client made about her in reviews posted on Avvo.com and other sites were not statements of opinion and thus weren't protected by the First Amendment.
The reviews asserted “that Giustibelli lied to [defendant Copia Blake] regarding the attorney's fee” and that she “falsified a contract,” Chief Judge Cory J. Ciklin wrote. “These are factual allegations, and the evidence showed they were false.”
The panel, which also included Judges Melanie G. May and Alan O. Forst, said the trial court also didn't err in finding the statements were “libelous per se” because they had a tendency to injure Giustibelli in her profession—and that the $350,000 verdict, which consisted entirely of punitive damages, was warranted even if “actual damages [were] neither found nor shown.”
The ruling drew praise from several attorneys who said, in blogposts and media interviews, that the case could mark a turning point in the online reputation wars lawyers increasingly must wage against disgruntled clients who have more platforms to air their grievances than ever before.
One Florida lawyer who specializes in social media law told a newspaper that Blake could end up being a “landmark” case.
Another Florida lawyer, Charles D. Scott, suggested on his blog that “things just changed a bit for the better for lawyers” because Blake reflects judicial recognition that “the lawyer's reputation is his primary asset.”
And legal ethics expert Michael S. Frisch wrote on the Legal Profession Blog that the ruling “will hearten lawyers who are trashed online by former clients.”
But several other observers told Bloomberg BNA that these early views could prove to be a somewhat optimistic assessment of Blake.
Comments from those sources, and a review of the underlying record, indicate that Giustibelli may have prevailed because of factors that may not apply to every lawyer-vs.-client defamation case.
Experts said Giustibelli benefited from a number of favorable factors—especially Blake's failure to couch her criticisms as statements of opinion that would not have been actionable.
Eric P. Robinson, an attorney and media scholar who co-directs the Press Law and Democracy Project at Louisiana State University, said Blake could easily have accused Giustibelli of dishonesty in a way that would have allowed her to avoid liability.
According to Robinson, Blake could have simply said “I think [Giustibelli] is dishonest.” He said “That's a statement of opinion,” and thus would have been protected speech.
Giustibelli also benefited from what one attorney-blogger has described as “special rules for defamation per se cases” in Florida that lower the evidentiary burden plaintiffs must meet to prove damages.
Quoting precedent, the trial judge said that in Florida targets of per se defamation may recover punitive damages “‘even though the amount of actual damages is neither found nor shown.'”
That distinguishes the state from other jurisdictions, plaintiffs' lawyer Alan Sackrin of Sackrin & Tolchinsky P.A. wrote in a blog post discussing the case cited by the trial judge.
“No invoices, no lost profits, no lost monies, no evidence of damage itself has to be shown to the court before a judgment can be rendered in favor of the plaintiff,” Sackrin wrote.
By contrast, in most other jurisdictions punitive damages “have to bear a reasonable relationship to compensatory [or actual] damages,” Robinson said.
Lawyers who file defamation suits predicated on allegedly libelous online reviews face a high evidentiary burden in jurisdictions that do require a showing of actual damages, according to Colleen M. Devanney, a lawyer in the Cincinnati office of Vorys, Sater, Seymour and Pease LLP.
It is “going to be hard to prove actual damages” in such cases because “you don't know how many people saw” an allegedly defamatory review, Devanney told Bloomberg BNA.
Trial attorney John G. Browning, a shareholder in the Dallas-based firm Passman & Jones P.C. and a legal ethics professor who has written dozens of articles on attorneys' use of social media, echoed that point when he spoke with Bloomberg BNA. Lawyers who sue over allegedly defamatory reviews face “the unenviable task of not just having to prove the actual damages, but also quantify them,” he said.
Giustibelli also benefited when the defendants—Blake and her ex-husband, who also posted comments about the lawyer—chose to defend themselves.
Experts who spoke with Bloomberg BNA said the pro se circumstance may have been one reason Giustibelli's complaint didn't trigger counterclaims for malpractice or breach of fiduciary duty.
Such counterclaims are usually an “inevitability” when lawyers sue clients, Browning said. “Now there's something you have to report to your malpractice carrier,” he added, and counsel the insurer hires to defend the counterclaim “doesn't really care about your defamation claim.”
The defendants also didn't invoke another remedy routinely used by targets of defamation claims: anti-SLAPP motions. But that failure may be attributable to what one nonprofit organization has characterized as Florida's “narrow” anti-SLAPP protections.
Experts said the fortuitous confluence of circumstances that allowed Giustibelli to prevail in her suit may not help other attorneys contemplating defamation actions as a response to online criticism.
One hurdle Giustibelli didn't have to worry about was trying to discern the source of the allegedly defamatory reviews. Other lawyers who are not so fortunate may be precluded from litigating a claim, Robinson said, because there “is a growing body of cases that underscore just how difficult it can be to unmask anonymous commenters.” (See, e.g., Thomson v. Doe, 356 P.3d 727, 31 Law. Man. Prof. Conduct 421 (Wash. Ct. App. 2015).)
Devanney, who works for one of the only large firms with a practice group focused exclusively on Internet defamation, said she often counsels clients that “litigation isn't always the best option” even if the defendant is identifiable and the claim is legally cognizable.
Devanney said professionals considering libel claims against a former client or customer must bear in mind that “a lawsuit is a public document,” and that by going to court they may suffer “reputational” damage and lose the business of prospective clients who may not be inclined to retain somebody with a record of suing ex-clients.
Browning agreed. He said lawyers eager to wipe alleged smears off the Internet must consider the “Streisand effect,” which Wikipedia defines as “the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely.”
Litigation also may not be worth the cost and effort if a defendant is not going to be able to satisfy a judgment. “There may not be a pot of gold at the end of the rainbow,” Browning said. He highlighted the case of a Texas law firm that recently drew headlines about its litigation against a judgment-proof client accused of failing to pay its fees.
All the firm got at the end of the ordeal was “a paper judgment” and “unwelcome publicity,” Browning said. As a result of the publicity, Browning said, “What everybody knows about that firm is that they had a very vocal, unhappy client—which isn't exactly a rousing endorsement for their legal services.”
Asked about alternatives to litigation, all of those interviewed by Bloomberg BNA cautioned that lawyers should not adopt one measure for combating online criticism that doctors and dentists have come under fire for using: nondisparagement agreements that require patients or clients to prospectively waive the right to criticize the professional.
“The legal profession could learn how not to deal with these issues by looking to the problems the medical profession has had,” Robinson said.
Prospective waivers of the sort doctors and dentists have attempted to use are problematic for several reasons, Robinson said. Such provisions raise concerns about “bad publicity” and “accusations of censorship,” he said, and their enforceability is not certain.
Devanney agreed, saying the validity of such clauses is questionable because they represent a “very broad restraint on future speech.”
Browning said his first move when retained by a professional who claims to have been defamed online is to seek the cooperation of the website on which the allegedly libelous statement was posted. “One of my first steps is to look at the most current version of [the website's] terms of services,” Browning said.
Browning said some of the companies he has dealt with on behalf of clients—including Facebook, Google and Twitter—have a “dedicated administrator or complaint officer” who may be willing to take down material that violates the site's terms of services.
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