An opinion by Judge Everett Martin, Virginia Circuit Court in Ashby v. Rowe (Va. Cir. (Va. Cir.
After all, there is a third certainty to life: any acrimony between Portsmouth’s public officials will make its way into the media. It has also found its way into the Court via the Elizabeth River.
Four former City officials are involved in this case. Plaintiff is the ex-City Attorney. The defendant is the ex-Mayor. Plaintiff argues that the former chief police officer took action which dissatisfied the former mayor. The chief of police was then put on administrative leave by the city manager. Several citizens called for the resignation of the City Manager.
Responding to this request, the plaintiff offered legal counsel to the City Council regarding possible dismissal. Following his counsel, the City Council voted to dismiss the plaintiff by a vote of 4-3. After the discharge of the plaintiff, the defendant spoke to the media.
Further, the plaintiff pleaded that defendant stated in interview that majority of City Council members had lost confidence in plaintiff. That communication was problematic. The plaintiff also claimed that she gave unbalanced advice. According to the defendant, [advice]The straw that broke the camel’s back. It was the most bizarre opinion I have ever heard. It just did not make any sense and it doesn’t make any sense now…. We were not able to find the right balance and sound advice. This shakes confidence. This was not defamatory, the plaintiff claims. This is his claim: This statement was falsely claimed by the plaintiff.
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….”
A copy of the advice he gave to the City Council has been attached by plaintiff to his complaint. The plaintiff did not write that the City Council couldn’t fire the City Manager.
He did however write that the City Council shouldn’t do this; that voting for her release could violate two sections of Portsmouth City Code. That a citizen can file “charges” against Portsmouth City Code members for voting in that manner; and that plaintiff “would need to submit the facts about the City Council’s actions to the Commonwealth Attorney’s Office. {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…. Defamatory statements must be false and defamatory. Law will determine if this statement is legal. The language must have the required “sting”.
General disparaging remarks about the character of an attorney or their knowledge were possible early on in the evolution of the law defamation. Palmer v. Boyer (Q.B. 1594) (he had “no more law than a jack-anape” {(Q.B. S. Johnson, Dictionary (1755)}); Peard v. Jones (K.B. 1634. (“He’s a dunce, and will do nothing under the law.”); Baker v. Morfue (K.B. 1667). (“He hath only Mr. C’s bull law,” refers to another case that it was possible to hold a lawyer liable to claim “he hast no more laws than a goose law”.”); Jones v. Powel (K.B. (K.B.”); Day v. Buller (C.P. (1770) “What, does this guy pretend to be an attorney?” He’s no lawyer, but he is the devil! Blackstone stated that it was legal to label a lawyer “knave.” These statements could be considered defamatory. {They might also be subject to the defenses of opinion, rhetorical hyperbole, and mere insult.}
King v. Lake (K.B. 1671), The plaintiff-attorney claimed that the defendant sent a letter to an honorable client. In it, he said: “Mr. R. will advise you to a litigious suit and will make you pay double or treble fees. He is a griping attorney, and will take your money to feed his vast purse.” Most people found the words applicable and expressed their opinions by stating in Ad dictum“Or that he offers bad counsel. It is actionable.” {The defendant gave statements that were similar to the ones in the dictum, but concedes they are opinion.}
The Supreme Court of Virginia has been holding, on this side of Atlantic and of more recent vintage. King v. LakeThe defamatory statement that a lawyer “just takes people’s money” was inaccurate and would result in clients receiving more money if he had not been hired but they dealt directly with him is unacceptable. It is possible to sue for words which accuse an attorney in unethical or nonprofessional conduct that injures or discredits him as a professional.
Perk v. Vector Resources GroupThe plaintiff (1997) was a collection attorney for a hospital. The hospital terminated the representation and ordered the plaintiff to hand over the accounts to either it or one other defendant. One law firm is accused of telling some hospital debtors the plaintiff didn’t report to them certain payments that they had made. Although the Court didn’t give much explanation, it ruled that statements weren’t defamatory As such,They cannot be used to infer a defamatory offense. The Court may have found that the statements were merely an alleged error or misinterpretation.
Virginia can defame a statement that disparages the competence of one professional in a single task. This is a prohibited offense Cashion v. Smith(2013). In an action between two doctors, the defendant made statements in the presence other than the plaintiff, which included “you just executed my patient” and similar defamatory remarks. Although the “sting” of defamation was not in issue, it would seem that they were.
In two cases, the Supreme Court of Virginia has discussed “sting” in recent years. Two recent cases by the Supreme Court of Virginia addressed “sting.” Hartdberg,According to the defendant, the plaintiff claimed that he had invoiced a school board regarding services not rendered. This dishonesty accusation was held to be a defamatory “sting.”
Schaecher, Plaintiff was accused of violating an agreement, restrictive covenant and county ordinances by proposing a dwelling plan. These allegations were not considered inherently defamatory. Also, she claimed the plaintiff wasn’t entirely truthful when she said she operated a commercial kennel. She also stated that she “lied and manipulated facts in her favor” with the county planning commissioner. This statement had the “sting”, but the Court found that it was lacking the “sting”.
So it would appear that accusations of professional incompetence, unethical conduct, or dishonesty and mendacity are enough to “sting.” These are not the only possible allegations.
This is my view of the case. It is possible to imagine legal advice being mischaracterized that would have been defamatory. Falsely telling another client that his lawyer had advised him to do illegal or immoral acts, and in violation of the law, is a false statement. There is nothing similar here.
When assessing defamatory statements, context is crucial. 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 …. A slight mischaracterization or discrediting of the advice will not affect the plaintiff’s “reputation within the common estimation. mankind,” or throw shame upon him. …