The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
A law professor doesn’t have a triable defamation claim against a lawyer who complained to the law school dean about the professor’s alleged meddling in a custody case, the Texas Court of Appeals, First District held Oct. 12 ( Paulsen v. Yarrell , Tex. App., 1st Dist., No. 01-16-00061-CV, 10/12/17 ).
A reasonable person would see the lawyer’s letter as her opinion coupled with factual statements that were shown to be true, so the trial judge was right to stop the professor’s defamation suit before trial, Justice Michael C. Massengale said.
The case exemplifies the all-too-common situation where lawyers trade accusations in a client matter and then start fighting about their own conduct.
The wrangle here arose out of a custody dispute involving twin children who were conceived with Marvin McMurrey III’s sperm and donor eggs, the embryos from which were then implanted in another woman.
James W. Paulsen, a law professor at South Texas College of Law, wrote a letter to the judge in the custody case, criticizing McMurrey and the judge’s rulings. McMurrey’s lawyer, Ellen A. Yarrell, then exchanged emails with Paulsen about the custody case and Paulsen’s letter, which he described as an “amicus curiae letter brief.”
After Paulsen sent another letter to the trial judge, Yarrell wrote to the law school dean, complaining about Paulsen’s letters to the trial court. Paulsen then sued Yarrell for defamation.
Paulsen contended that these statements in Yarrell’s letter to the dean were defamatory:
The court said that many of the statements in Yarrell’s letter to the dean were objectively verifiable, such as her statement that Paulsen sent two letters to the judge on South Texas letterhead.
Moreover, the court found that Yarrell’s statements about Paulsen’s conduct were purely subjective assertions of opinion. Yarrell affirmatively stated that her research was ongoing, and she used the word “if,” Massengale pointed out.The court concluded that, considering the whole letter, “a reasonable person would perceive the letter to be Yarrell’s opinion coupled with some statements of fact, which have been shown to be true, and therefore not actionable in defamation.”
A separate issue in the case had to do with the Texas Citizens Participation Act, which provides a special mechanism to get rid of a meritless legal action that’s related to a party’s rights of free speech, petition, or association. The act is sometimes called an anti-SLAPP law, which stands for “strategic lawsuit against public participation.”
The appeals court held that Paulsen couldn’t file a motion to dismiss under the TCPA as a response to Yarrell’s motion to dismiss Paulsen’s defamation suit under the TCPA.
The TCPA’s dismissal mechanism doesn’t authorize a countermotion to dismiss as a substitute for a standard response in opposition, the court said.
The panel consisted of Justices Massengale and Harvey G. Brown.
Paulsen, Houston, represented himself. Roberts Markel Weinberg Butler Hailey P.C. represented Yarrell.
To contact the reporter on this story: Joan C. Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Copyright 2017, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)