Virginia Lawyers Weekly

A lawyer can sue an Internet poster for defamation for suggesting the lawyer should be turned into bar disciplinary authorities, even though the online poster claimed he was just offering an opinion.

In Cretella v. Kuzminsk (VLW 008-3-210), U.S. District Judge James R. Spencer re-fused to dismiss defamation claims filed under Virginia law by a Maryland lawyer who got into an online spat with writers who posted to Absolute Write Water Cooler, “an online forum for aspiring authors.”

Plaintiff Victor E. Cretella III represents PublishAmerica, a Frederick, Md.-based firm that calls itself the nation’s number-one book publisher. The PublishAmerica Web site describes the company as a “traditional advance-and-royalty paying” publisher that uses print-on-demand technology, but a 2005 Washington Post story described authors’ complaints that the company operated more like a vanity press.

Spencer’s May 29 opinion denying the defendant’s motion to dismiss detailed the plaintiff lawyer’s allegations.

In 2007, Cretella sent two cease-and-desist letters asking a female poster to the AWWC site to stop defaming his client. When that poster said Cretella was forcing her to stop complaining about his client, Petersburg poster David Kuzminski weighed in the next day.

Kuzminski posted a message saying “it’s time to report Vic Cretella to the Maryland Bar Association for attempted extortion” and that Cretella’s law firm, Gordon and Simmons, “might not want the black-eye that he’s giving them.” Kuzminski also posted a copy of an e-mail he sent to the law firm and to several members of the Maryland bar asserting that Cretella “seems to be involved in what I would characterize as extortion” and that he intended to report Cretella to “the Maryland State Bar Association.”

Almost three months later, Kuzminski posted a message saying, “We can only speculate on how much embarrassment [Cretella] caused” his law firm, which he left in April 2007. Kuzminski also posted messages that Cretella “might be just that closer to losing his license” to practice law; that Cretella had “attempt[ed] to attack [another] writer”; that he has “infringed upon or is breaching the terms of [a PublishAmerica] contract”; and that “it’s time to report Vic for his behavior” to the Mary-land State Bar Association.

Kuzminski also posted a comment suggesting Cretella had left his law firm job because “[s]omewhere along the line you actually have to produce.”

Cretella sued Kuzminksi in Richmond federal court for $200,000 in compensatory and $200,000 in punitive damages.
Kuzminksi tried to duck the defamation charge by claiming he was only expressing his opinion about Cretella’s allegedly unethical conduct.

But Spencer said that an opinion that is “laden with factual content” may be defamatory, citing the Virginia Supreme Court’s 2007 opinion in Raytheon Tech. Serv. v. Hyland, a case that is back before the state high court in a writ granted May 20.
A statement that a person has broken the law “may amount to an expression of opinion,” Spencer said, but “many courts have regarded accusations of unlawful activity as statements of fact.” Kuzminski did not necessarily escape liability by saying Cretella had been “involved in what I would characterize as extortion.”

The court said several of Kuzminki’s other alleged statements – the accusations of extortion and unethical conduct, embarrassment by Cretella’s former law firm, that Cretella took action against another author – all were statements of fact that could be shown to be false.

Under Virginia law, Cretella only has to prove that Kuzminski acted negligently in posting the allegedly defamatory comments in order to recover compensatory damages, Spencer said.

Cretella’s claims that Kuzminski accused him of breaking the law and professional ethics rules without explaining or providing evidence for this belief, and his request that other people provide “documentation” to the Maryland State Bar Association, supported the claim for punitive damages.

Cretella and Kuzminski each appear pro se in the lawsuit.

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