Court Finds Client's Criticism Did Not Defame Lawyer

, New York Law Journal

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Frechtman alleged that Gutterman and Response Companies owe him more than $57,000 in unpaid legal fees, and is seeking an additional $250,000 in punitive damages for the alleged defamation.

When Scarpulla dismissed the case, Frechtman appealed.

In upholding Scarpulla's decision, Saxe noted that "it would seem reasonable to conclude" that the claim must fail because the letters were not published. However, he said the Court of Appeals had ruled in Ostrowe v. Lee, 256 NY 36 (1931) that merely dictating a letter to an employee, as Gutterman allegedly did, can be considered "publishing" it to a third party.

Thus, he found, "the publication requirement may be satisfied by the allegation that the document's contents were revealed to such a company employee."

The claim failed, however, because the statements in the letter amounted to opinion, not fact, even though some of the language suggested accusations of specific wrongdoing.

"While the use of words such as 'misconduct' and 'malpractice' may, viewed in isolation, seem to be assertions of provable fact, or claims supported by unstated facts, viewed in their context, these statements amount to the opinions and beliefs of dissatisfied clients about their attorney's work," Saxe wrote.

Even if the statements were factual, they are protected by absolute attorney-client privilege, Saxe said. He cited the First Department's own 2007 decision in Sexter & Warmflash v. Margrabe, 38 AD3d 163, 174, which explicitly held that a letter terminating an attorney was privileged.

Finally, Saxe said, the letters were subject to qualified privilege "as communications upon a subject matter in which both parties had an interest."

The defendants were represented by Brian Bluver, the Response Companies' chief counsel.

Bluver said he believed that Frechtman was essentially using a defamation claim as an attempt to get attorneys' fees he thought he was owed.

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