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New York Court Holds Statements In Letter Terminating Lawyer Cannot Support Defamation Claim

In Frechtman v. Gutterman, 2014 NY Slip Op 00437, the Supreme Court, Appellate Division, a lawyer received an irate letter from his client in which his services were terminated. The lawyer sought to sue for defamation. The trial court dismissed the defamation case and the Appellate Division affirmed.

The letter contained the following statements: “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,” and “[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.”

The trial court held that the statements above were merely statements of opinion, not statements of fact, and, thus, were not actionable. The court found the use of the phrase “we believe” significant. The court further held that statements by a client discharging a lawyer are absolutely privileged.  Finally, the court also held that a qualified privilege would apply and that the plaintiff did not allege malice sufficient to overcome the privilege.

Edward X. Clinton, Jr.

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