A lawyer who said he was defamed by a draft legal complaint that described him as “an unethical lawyer and a racist” cannot sue for defamation, says a Fairfax Circuit Court.
Claims made in a lawsuit generally are protected under the absolute privilege that attaches to judicial proceedings. But the law on when that protection starts and how far it goes is still something of an open question in Virginia.
Under the legal test used in the new decision, Mansfield v. Bernabei (VLW 011-8-099), lawyers who share draft complaints before filing in order to speed up settlement talks are protected from defamation claims that come from the complaint.
Fairfax Circuit Judge R. Terrence Ney becomes the second Virginia circuit judge to apply a test used in the Restatement (2nd) of Torts.
The test, also used by a Norfolk Circuit Court in 1997, extends the absolute privilege to lawyers and parties for communications that come before a judicial proceeding, when the claims are proposed in good faith and the communications relate to that proceeding.
In the defamation action, Fairfax lawyer James M. Mansfield sued a Washington, D.C., law firm, two of its lawyers, and its African-American client.
Bernabei & Wachtel PLLC filed a federal court action in 2008 alleging their client Michael Ford had been illegally terminated because of race from a property manager position at Horizon House Condominiums in Arlington.
In his job application, Ford had disclosed a 1995 misdemeanor assault conviction in Ohio. A routine background check showed he had two pending charges, for second-degree assault and a fourth-degree sexual offense, involving a tenant in the apartment building where Ford previously served as building manager. Ford told the condo board the charges were false and made by a tenant whose lease he did not renew. The charges were still pending when Ford began working at Horizon House in December 2005, on a provisional basis. Two months later, a Prince George’s County, Md., court found Ford not guilty of the charges.
In his federal complaint, Ford alleged that shortly after he was hired, tenants began expressing concerns about his criminal record and the pending charges. A tenants’ group organized and elected a new board, who fired Ford. He alleged he suffered a hostile work environment and had received a race-related death threat.
Ford sued multiple defendants for race discrimination under Title VII and 42 U.S.C. § 1981. In July 2009, the Alexandria U.S. District Court dismissed all of the defendants, by agreed order, except for James M. Mansfield, the Horizon House lawyer. The court granted summary judgment to Mansfield in February 2010 (VLW 010-3-048).
Alexandria U.S. District Judge Liam O’Grady said Ford didn’t show any evidence that Mansfield ever referenced Ford’s race or made any racially derogatory comments. The “much more obvious explanation,” O’Grady said, was that Mansfield may have wanted Ford removed because of the concerns over his criminal record and the pending charges. On Ford’s appeal, the 4th U.S. Circuit Court of Appeals upheld the summary judgment for Mansfield.
O’Grady later denied attorney’s fees to Mansfield because he said Ford’s suit was “not frivolous,” but the court ordered Ford to pay nearly $17,000 in costs.
Mansfield hasn’t pursued collection of the costs, according to his lawyer and law partner, Robert J. Hartsoe. Hartsoe said Mansfield was fully vindicated by the federal legal rulings in Ford’s case.
But there was still the sting of losing a long-standing client. Mansfield had represented Horizon House since 1990.
Here, you have a lawyer who’s “done the best job ethically and morally that can be done, and you wind up being deposed and dragged through federal court” for your representation of your client, Hartsoe said. “It’s like being hit by a car… You can’t sit back idly and say they know who I am,” when the matter involves “sending a publication saying you’re a racist to your client.”
Mansfield filed the Fairfax defamation action against Ford, the law firm, and two of its lawyers, Lynne Bernabei and Emily Brittain Read. The defamation complaint said the accusation that Mansfield was “an unethical lawyer and a racist” began circulating with the draft complaint, labeled “for settlement purposes only,” that Bernabei & Wachtel sent to prospective defendants eight days before it filed suit in federal court.
Ney said the draft complaint was prepared in anticipation of litigation and was published only to potential defendants. He compared the draft to the complaint filed eight days later, and said they were substantially similar. Ney applied the Restatement test used by Norfolk Circuit Judge Charles E. Poston in Long v. Old Point Bank (VLW 097-8-108), and distinguished Lindeman v. Lesnick, 268 Va. 532 (2004), which said the privilege did not apply to mere potential litigation.
Hartsoe said he plans to appeal Ney’s decision.
“The Restatements have their strengths, but they haven’t been adopted by the Supreme Court” of Virginia, he said.
It’s very common for “parties or people who are thinking of being parties to send each other demand letters” with or without draft complaints, said Lee E. Berlik, a business lawyer in Northern Virginia.
Demand letters and pre-filing negotiations are subject to lawyer ethics rules, but lawyers may feel they have a little more leeway in draft documents, before they are filed in court, according to Berlik. Once they hit the court docket, the documents are subject to sanctions under Va. Code § 8.01-271.1, if they are not filed in good faith, or frivolous.
“You have a lot of lawyers out there who are a lot less careful in what they say in their demand letters than they are in” court pleadings, Berlik said. He thinks the test Ney used strikes the right balance.
The demand letter in Mansfield clearly “was not an empty threat,” he said.
Fairfax lawyers William L. Mitchell and Michael P. Freije, who represented Wachtel and its two lawyers, could not be reached for comment.
Alan R. Kabat, the Bernabei & Wachtel lawyer who represented Ford, said the Fairfax court reached the correct decision in applying the privilege to pre-litigation communications.