Court Finds Client's Criticism Did Not Defame Lawyer

, New York Law Journal


A client who blasted a veteran attorney's performance in a series of termination letters, going so far as to suggest "misconduct, malpractice, and negligence," did not defame the lawyer, a unanimous state appeals panel has ruled.

The Appellate Division, First Department upheld a lower court's ruling in Frechtman v. Gutterman, 157028/12, agreeing that the client's statements were not defamatory because they were expressions of opinion rather than fact, and protected by both absolute and qualified privilege.

The decision, handed down Thursday, affirmed a ruling by Manhattan Supreme Court Justice Saliann Scarpulla (See Profile) dismissing the defamation case. Appellate Justice David Saxe (See Profile) wrote the decision and was joined by Justices Angela Mazzarelli (See Profile), Rolando Acosta (See Profile), Rosalyn Richter (See Profile) and Paul Feinman (See Profile).

The plaintiff, A. Bernard Frechtman, has practiced law in New York for more than 60 years. His clients included a group medical staffing business, Response Companies, owned by Allen Gutterman, whom he represented in various matters.

In August 2012, Gutterman gave three letters to Frechtman terminating his employment in three separate matters, according to the attorney's complaint, which named Gutterman and his companies as defendants. The letters were allegedly typed by one of Gutterman's employees and then signed by Gutterman.

Frechtman claimed that the letters contained defamatory statements, including:

• "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."

•"[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."

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