Virginia Lawyers Weekly

A Norfolk law firm has settled a claim against a medical records company for $2,500 after the company threatened an ethics complaint when its owner believed the firm hadn’t paid a bill for $66.45.

The firm of Gilbert & Albiston received a document from the company indicating that it had filed a complaint with the Virginia State Bar alleging that the firm was unethical because it had not paid its bill.

Don E. Hardwick, the president and CEO of Record Enterprises Inc. of Midlothian, had filled out the form the VSB provides to those who have concerns about a lawyer’s conduct.

Hardwick alleged that the firm had used the records to settle their case and had failed to pay his company for them “despite numerous attempts to collect this debt. We believe there is unjust enrichment by this firm and its refusal to make payment is [inappropriate] and unethical.”

O.L. “Buz” Gilbert checked and found that his firm owed no money to the company.

Gilbert said he and his law partner, George Albiston, “both were incensed with regard to this attempted collection practice. I heard from several other lawyers who advised they received the same form with the same allegations from Record Enterprises.

“My firm did not want the State Bar used as a collection agency by this or any other company,” Gilbert said. “We felt that if a company was owed money that it should use the legal process to collect rather than threaten bar action. We decided to try to stop the conduct of the defendants.”

The firm filed a warrant in debt for $15,000 in Norfolk General District Court alleging defamation per se under Virginia Code § 8.01-45. Hardwick and his company knew or should have known that the allegation of unethical conduct in what appeared to be a bar complaint was false and defamatory, Gilbert alleged.

The registered agent and attorney for the defendants responded that the form never had been sent to the VSB. That meant there was no publication of the allegedly libelous statement, an essential element of a defamation count, the attorney contended.

Not so fast, Gilbert said. He cited an 1888 case, Roland v. Batchelder, 84 Va. 664, which held that publication is not an element of an offense under the predecessor of § 8.01-45. The law was enacted originally as the “anti-dueling statute” and is now known as the “fighting words” statute.

The intent was to give a cause of action for damages as a substitute for a duel when insulting words were uttered, Gilbert said.
The court said in Roland, “To render insulting words actionable, they need not be spoken in the presence of a third person, and, to render written words which are insulting actionable, it is not necessary that they be published to the world.”

Gilbert said the defendants paid $2,500 to settle the case and agreed not to use the VSB Inquiry Form as a collection technique.

Efforts to reach the attorney who represented Record Enterprises were unsuccessful.

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