From an opinion issued last year by Virginia Circuit Court Judge Everett Martin in Ashby v. Rowe (Va. Cir. Ct.), but just posted on Westlaw in the last couple of days:
There is, after all, a third certainty in life: acrimony among public officials in Portsmouth will find its way into the press. Of late, it also finds its way across the Elizabeth River into this Court.
This case involves four former officials of the City of Portsmouth. The plaintiff is the former City Attorney; the defendant, the former Mayor. The plaintiff pleads the former chief of police took some action that displeased the former city manager. The city manager then placed the chief of police on administrative leave. This caused some citizens to call for the City Council to fire the city manager.
In response to this call, the plaintiff gave legal advice to the City Council concerning the possible dismissal of the city manager. After receiving his advice, the City Council voted 4-3 to sack the plaintiff. The defendant gave an interview to the press after the plaintiffs discharge.
The plaintiff further pleads that in this interview the defendant said a majority of the City Council had "lost confidence" in the plaintiff; that communication was a problem; that the plaintiff gave unbalanced advice. The defendant continued: "That [advice] was the straw that broke the camel's back. I have never seen an opinion like that before. It just did not make any sense and it doesn't make any sense now…. It's what we thought was not very balanced and good advice, and that shakes your confidence." The plaintiff does not claim any of this was defamatory. He bases his claim on this statement: "Culminating in an opinion that you can't fire the city manager, that the city manager is bulletproof, and that just does not hold up." The plaintiff alleges this statement is false and defamatory.
The plaintiff does not contend the defendant's use of the word "bulletproof" was to be taken literally, but, rather, that the defendant was doubling down on his false statement that the plaintiff had advised the City Council that "You can't fire the city manager…."
The plaintiff has attached to his complaint a copy of his advice to the City Council. It is correct that the plaintiff never wrote that the City Council could not fire the city manager.
However, he did write that the City Council should not do so; that a vote for her discharge could be a violation of two sections of the Portsmouth City Code, both of which are misdemeanors; that a citizen could file a "charge" with a magistrate against members so voting; that he (the plaintiff) "would have to forward the facts of City Council's action to the Commonwealth Attorney's Office for consideration." {The principal duty of a Commonwealth's Attorney is the prosecution of criminal offenses.} …
To be actionable, a statement must be both false and defamatory…. To be defamatory, a statement must also have a defamatory "sting" to one's reputation, and this is to be determined as a matter of law. To have the necessary "sting" the language used: "tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous."
Early in the development of the law of defamation, general disparagements about an attorney's character or knowledge of the law were actionable. Palmer v. Boyer (Q.B. 1594) (he had "no more law than a jack-anape" {"Monkey; ape." S. Johnson, Dictionary (1755)}); Peard v. Jones (K.B. 1634) ("He is a dunce and will get nothing by the law."); Baker v. Morfue (K.B. 1667) ("He hath no more law than Mr. C's bull," referring to another case in which it had been held actionable to say of a lawyer "he hath no more law than a goose."); Jones v. Powel (K.B. 1682) ("Thou canst not read a declaration."); Day v. Buller (C.P. 1770) ("What, does he pretend to be a lawyer? He is no more a lawyer than the devil!") Blackstone wrote that it was actionable to call a lawyer a "knave." I need not decide whether these statements would be thought today to have defamatory sting. {They might also be subject to the defenses of opinion, rhetorical hyperbole, and mere insult.}
In King v. Lake (K.B. 1671), the plaintiff-attorney alleged the defendant wrote a letter to a noble client in which he stated concerning the plaintiff: "Mr. R. advises you to a vexatious suit, and he will make you pay double and treble fees, is a griping lawyer, and he will milk your purse to fill his large purse." A majority found the words actionable, and in delivering their opinion stated in dictum "Or, that he gives bad counsel, it is actionable." {The plaintiff pleads the defendant made statements similar to that in the dictum, but concedes they are opinion.}
On this side of the Atlantic, and of more recent vintage, the Supreme Court of Virginia, has held, in accord with King v. Lake that it was defamatory to speak of a lawyer that he "just takes peoples' money" and that his clients would receive more money if they had not hired him but had dealt with the adjuster directly. Words which charge an attorney with unethical or unprofessional conduct and tend to injure or disgrace him in his profession are actionable.
In Perk v. Vector Resources Group (1997), the plaintiff was a collections attorney for a hospital. The hospital ended the representation and instructed the plaintiff to deliver the accounts to it or one of the defendants. Another defendant, a law firm, was alleged to have told some of the hospital's debtors that the plaintiff had not reported to the hospital certain payments they had made to him. The Court did not give much of an explanation, but it held the statements were not defamatory per se, nor could a defamatory charge be inferred from them. Perhaps the Court found the statements merely alleged mistake or misunderstanding.
A statement disparaging the competence of a professional's conduct of a single undertaking can be defamatory in Virginia. In Cashion v. Smith (2013), an action between two physicians, statements by the defendant in the presence of others, including, "you just euthanized my patient," were defamatory. Defamatory "sting" was not at issue but would appear to have been present.
There are two recent cases in which the Supreme Court of Virginia discussed the subject of "sting." In Hartdberg, the defendant stated that the plaintiff had billed a school board for services not performed. This accusation of dishonesty was held to have defamatory "sting."
In Schaecher, the defendant accused the plaintiff of violating an easement, a restrictive covenant, and a county ordinance by a proposed dwelling plan. These accusations were held not inherently defamatory. The defendant also alleged the plaintiff "was not totally truthful" about whether she was operating a commercial kennel, and that she was "lying and manipulating facts to her benefit" in dealings with the county planning commission. The latter statement was held to have the requisite "sting;" the Court held "sting" was missing in the former.
It would thus appear that statements accusing a professional of willful incompetence or unethical conduct or anyone of dishonesty or mendacity have the requisite "sting." This is not to say these are the only allegations that could have "sting."
I view this case as mischaracterization of legal advice. I can imagine mischaracterized legal advice that could have defamatory "sting." A client falsely tells another his lawyer advised him he could do something illegal, immoral, or in violation of legal ethics. We have nothing like that here.
Context is of the utmost importance in evaluating defamatory statements. I do not find the statement defamatory on its face, nor when considered in the context of the defendant's other statements and the advice the plaintiff actually gave …. This slight mischaracterization of advice does not injure the plaintiff's "reputation in the common estimation of mankind," throw shame or disgrace upon him, or "tend to hold him up to scorn or ridicule or render him infamous or ridiculous." …
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