Lawyer’s Letter to Dean Griping About Law Prof Wasn’t Defamation

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By Joan C. Rogers

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.

Opinion Coupled With Facts

Paulsen contended that these statements in Yarrell’s letter to the dean were defamatory:

  •  “Paulsen’s correspondence … constitutes improper attempts to influence a tribunal";
  •  “Paulsen’s interference with this most serious legal matter constitutes a grave breach of legal ethics"; and
  •  “his conduct invites the Judge to violate Canon 2(B) of the Code of Judicial Conduct.”
However, the appeals court said an allegedly defamatory statement must be construed as a whole, not merely based upon individual statements considered in isolation.

 

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.”

SLAPP Issue

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 jrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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