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Comments about lawyer’s advice lacked defamatory sting

Defendant’s statements to the press about plaintiff’s legal advice to the Portsmouth City Council lacked the necessary sting to support his defamation suit.


Plaintiff is Portsmouth’s former city attorney. Defendant is the former mayor. Plaintiff’s complaint alleges that after Portsmouth’s city manager placed Portsmouth’s former police chief on administrative leave, some Portsmouth residents wanted the city council to fire the city manager.

In response, plaintiff gave the city council advice regarding the city manager’s possible discharge. The council then voted 4-3 to fire plaintiff. In the aftermath, defendant gave an interview to the press about plaintiff’s firing.

The complaint further alleges that during the interview, defendant stated that a majority of the city council “had ‘lost confidence’ in the plaintiff; that communication was a problem; that the plaintiff gave unbalanced advice.

“The defendant continued: ‘That [advice] was the straw that broke the camel’s back.  I have never seen an opinion like that before. It just did not make any sense and it doesn’t make any sense now. …  It’s what we thought was not very balanced and good advice, and that shakes your confidence.’

“The plaintiff does not claim any of this was defamatory. He bases his claim on this statement: ‘Culminating in an opinion that you can’t fire the city manager, that the city manager is bulletproof, and that just does not hold up.’ The plaintiff alleges this statement is false and defamatory.

“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[.]’”

Counsel to council

“The plaintiff has attached to his complaint a copy of his advice to the City Council. It is correct that the plaintiff never wrote that the City Council could not fire the city manager.

“However, he did write that the City Council should not do so; that a vote for her discharge could be a violation of two sections of the Portsmouth City Code, both of which are misdemeanors; that a citizen could file a ‘charge’ with a magistrate against members so voting; that he (the plaintiff) ‘would have to forward the facts of City Council’s action to the Commonwealth Attorney’s Office for consideration.’

“This is not construing the allegations of the complaint in the light most favorable to the defendant; rather, it is an accurate summary of the advice the plaintiff gave the City Council.”

No sting

Defendant’s demurrer is before the court. “To be actionable, a statement must be both false and defamatory. … It is for the court to ‘decide as a threshold matter of law whether a statement is reasonably capable of defamatory meaning[.]’ …

“To be defamatory, a statement must also have a defamatory ‘sting’ to one’s reputation, and this is to be determined as a matter of law. … To have the necessary ‘sting’ the language used: ‘tends to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous.’ …

“A statement disparaging the competence of a professional’s conduct of a single undertaking can be defamatory in Virginia.” After reviewing the caselaw, it appears “that statements accusing a professional of willful incompetence or unethical conduct or anyone of dishonesty or mendacity have the requisite ‘sting.’ This is not to say these are the only allegations that could have ‘sting.’

“I view this case as mischaracterization of legal advice. I can imagine mischaracterized legal advice that could have defamatory ‘sting.’ A client falsely tells another his lawyer advised him he could do something illegal, immoral, or in violation of legal ethics.  We have nothing like that here.

“Context is of the utmost importance in evaluating defamatory statements. … 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, as [previously] summarized[.] …

“This slight mischaracterization of advice does not injure the plaintiff’s ‘reputation in the common estimation of mankind,’ throw shame or disgrace upon him, or ‘tend to hold him up to scorn or ridicule or render him infamous or ridiculous.’”

Defendant’s demurrer is sustained.

Ashby v. Rowe, Case No. CL20-9019, March 26, 2021, Norfolk City County Cir. Ct. (Martin). Christian L. Connell, Shepherd D. Wainger for the parties. VLW 021-8-047, 5 pp.

VLW 021-8-047

Virginia Lawyers Weekly