Lawyer Trying to Protect His Reputation As an Effective Advocate Misses Deadline for His Libel Suit
On April 8, 2007, Overlawyered writer Ted Frank blogged about an aviation attorney named Arthur Alan Wolk, prompted by an item on another legal blog about the dismissal of a ridiculous lawsuit Wolk had filed. Frank's summary of Wolk's case: "Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney sues other attorney for defamation." Frank noted that when Wolk settled the original case (the one that gave rise to the judicial rebuke), one condition was suppression of that embarrassing opinion. Frank suggested this demand created a conflict of interest:
Did Wolk's client suffer from a reduced settlement so that his attorney could avoid having the order used against him in other litigation? (The discovery violation complained about was apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately protecting his client's rights was Wolk's representation to the court that the client was alright with the size of the settlement. That begs the question whether the client was fully aware of the conflict of interest; if, as seems to be the case, the [court] failed to [make sure the client knew about the conflict], one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements.
This was not Wolk's first appearance at Overlawyered. A 2002 post noted how he had used a defamation suit to bully an aviation news website into a "a thoroughly abject capitulation and apology" for criticizing a $480 million verdict he had won from Cessna. The appeasement included an astonishing promise not to "characterize matters in such a way as to bring apparent discredit upon anyone," lest such characterizations instigate other people to commit libel. As Overlawyered put it, "The consequences of such a formula for the future of hard-hitting journalism can be imagined." The post concluded: "Among the lessons many observers will draw, we think, will be the old one: watch what you say about lawyers."
You probably can guess what happened next. The touchy lawyer with a history of suing his online critics into submission sued Frank, along with Overlawyered editors Walter Olson (a Reason contributing editor) and David Nieporent*, citing the 2007 comment about Wolk's conflict of interest. [Added note: The lawsuit was preceded by Wolk's demand that "you immediately remove this and every other article about me from your website."] But Wolk did not get around to suing until two years after the post appeared. Unfortunately for Wolk, Pennsylvania, where he filed his case, generally requires that defamation lawsuits be filed within one year of the injury. According to Law.com, Wolk argued that the court should let the statute of limitations slide, since he had not discovered Frank's allegedly defamatory post until April 2009, when he supposedly performed a Google search on his name after being advised to do so at a "seminar on client relations in early 2009."
U.S. District Judge Mary McLaughlin did not question the plausibility of this story, which suggests that a notoriously sensitive lawyer who had sued over online criticism back in 2001 did not think of Googling his own name until he learned about this esoteric technique in 2009. But in a decision (PDF) issued this week, she dismissed Wolk's suit, ruling that under Pennsylvania law plaintiffs can escape the one-year limit only if the alleged defamation was difficult to discover—e.g., because it occurred in a credit report or a confidential memorandum. McLaughlin said that exception does not apply if the offending statement was published in a "mass medium" such as a website that is well-known among attorneys and that "attracts more than 9,000 unique daily visitors, including tens of thousands of lawyers and other professionals."
In a sense, then, Frank, Olson, and Nieporent were saved by the conspicuousness of the forum in which they dissed Wolk. Even if Wolk had not missed the deadline, it seems likely he would have lost the case, since the comments to which he objected are a constitutionally protected combination of fact and opinion. But before losing, he would have succeeded in punishing his critics by inflicting the anxiety, inconvenience, and cost of litigation on them. One really wishes courts would do more to protect the First Amendment rights of writers who offend rich people with thin skins.
Law.com reports that "Wolk has already filed a notice of appeal to challenge McLaughlin's ruling."
[*Spelling corrected. His name was misspelled in McLaughlin's ruling.]
Addendum: Wolk says he avoided any conflict of interest in the case that Frank discussed by not participating in the settlement negotiations and by not asking the judge to vacate the order that criticized him until after an agreement had been reached. He cites letters from two other plaintiffs' attorneys who were involved in the case, who confirm this account. Wolk also says the judge's criticism was unfair, in part because other lawyers at his firm handled discovery in the case.
Update—September 2011: See statement published here.