Free Speech

Lawyer Loses Libel Lawsuit Over Newspaper Report of His Suspension for "Impersonation"

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From Elder v. 21st Century Media Newspaper, LLC, officially released today by the Appellate Court of Connecticut (opinion by Judge Barbara Bellis, joined by Chief Judge William H. Bright, Jr. and Judge Bethany J. Alvord):

The plaintiff [Joseph S. Elder] is an attorney …. The disciplinary action [against him] arose from two phone calls made in 2004, during which, according to the Office of Disciplinary Counsel, the plaintiff misrepresented his identity to an individual he later discovered to be a police officer conducting an investigation regarding certain legal advice that the plaintiff allegedly had given to a client, who was a suspect in a separate investigation …. The court … found by clear and convincing evidence that the plaintiff had misrepresented himself to that police officer by claiming to be Wesley Spears, another Connecticut attorney, in violation of rule 4.1 of the Rules of Professional Conduct. Accordingly, the court rendered judgment suspending the plaintiff from the practice of law for a period of one year (suspension decision).

On August 1, 2015, the Hartford Courant published an article titled, "Attorney Suspended for a Year." That article was written by [Matthew] Kauffman, and it summarized the suspension decision. The opening paragraph read, "Joseph Elder, a Hartford attorney who impersonated a fellow lawyer 11 years ago, spawning a long-running feud between the pair, will be barred from practicing law for a year, a Superior Court judge has ruled." Shortly thereafter, The Middletown Press, New Haven Register, The Register Citizen, and The Hour all published similar articles (2015 articles) reporting on the suspension decision

On May 2, 2017, nearly two years after the publication of the 2015 articles, our Supreme Court reversed the suspension decision on statute of limitations grounds. Kauffman wrote an additional article detailing the Supreme Court's decision. [Plaintiff sued for libel.] Specifically, the plaintiff argued that the 2015 articles' use of the word "impersonating" to describe his actions was "false, misleading and defamatory," and that the 2015 articles failed to "mention that the caller intentionally lied about his identity and that he was posing as a drug dealing criminal defendant, never identifying himself as an investigating police officer," which, the plaintiff argued, "painted an incomplete and misleading account of the incident …." …

{The fair report privilege is well established. "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."}

[A.] The plaintiff … claims that … the defendants did "not [submit] any proof of reliance on a government document as the source of the complained of publications." He argues that "[t]he naked assertions of fair report privilege without any factual verification that the authors of the complained of defamatory articles relied upon any government document, let alone [the suspension decision], are legally insufficient to support the motions for summary judgment." We disagree….

The plaintiff cites only Bufalino v. Associated Press (2d Cir. 1982) as support for this claim. In that case, the United States Court of Appeals for the Second Circuit reviewed a Pennsylvania ruling in which the trial court held that the fair report privilege applied to insulate the media defendant from liability for alleged defamatory statements. The defendant had published in certain Pennsylvania newspapers two reports that identified the plaintiff as a person with "alleged mob ties." The defendant in that case offered on appeal "a number of … official records which, it [argued] … establish financial, family, and social ties between [the plaintiff] and persons identified by state and federal officials as participants in organized crime." Those records, however, were not before the trial judge, and the Second Circuit held that, "[e]ven were we to accept the accuracy of these additional records, it is apparent that [the defendant] did not rely upon them in preparing its reports, but instead discovered them in preparation for the present litigation. We believe that the lack of reliance is dispositive of the issue of [fair report] privilege." "We thus conclude that [the defendant] is not entitled to summary judgment on the basis of records upon which it did not actually rely."

Bufalino stands in stark contrast to the facts of the present case and lends the plaintiff no support. Here, the defendants are not relying on any materials to support their defense other than the 2015 articles and the suspension decision, all of which were before the trial court, which held that "[a]ll of the newspaper articles may clearly be understood as reporting on a court decision. Moreover, the plaintiff cites no authority for the proposition that the defendants are obliged to submit proof of reliance on a government source in order to avail themselves of the fair report privilege." No such requirement exists under the facts of this case, where the defendants do not claim that they were relying on information outside of the decision on which they were reporting, and the plaintiff's argument to the contrary fails….

[B.] The plaintiff next claims that the court erred in granting the motions for summary judgment on the basis of the fair report privilege because the 2015 articles were not "fair and accurate accounts of the government document relied upon." We disagree….

[T]he fair report privilege affords leeway to "an author who attempts to recount and popularize an … event. … The author's job is not simply to copy statements verbatim, but to interpret and rework them into the whole. … A fussy insistence upon literal accuracy would condemn the press to an arid, desiccated recital of bare facts." …

Much of the plaintiff's claim concerns the 2015 articles' use of the word "impersonating" to describe his actions, the characterization of the legal advice he rendered that formed the basis of the police investigation, and certain alleged omissions regarding that investigation. He argues that the suspension decision "claimed to be the source of the claimed fair report privilege does not include … any finding that the plaintiff was guilty of impersonation," and that "the defendants' references in their complained of publications to 'impersonation' and the plaintiff's alleged rendition of legal advice 'to ignore the police,' together with their knowing omission of the fact of the police officer's deceptive posturing as a criminal defendant, negate the application of the conditional privilege of fair report."

Having compared the 2015 articles to the suspension decision, we conclude that none of the plaintiff's allegations is sufficient to defeat the fair report privilege. First, the 2015 articles contained substantially similar language with respect to impersonation—Kauffman's article in the Hartford Courant read "Joseph Elder, a Hartford attorney who impersonated a fellow lawyer 11 years ago, spawning a long-running feud between the pair, will be barred from practicing law for a year, a Superior Court judge has ruled"; and the other 2015 articles reported that "[a] Connecticut judge has suspended a Hartford attorney for impersonating a fellow lawyer 11 years ago."

In comparison, the suspension decision provides that the police officer "spoke to [the plaintiff] who again misidentified himself as Attorney Spears" and that "[t]he court finds that [the plaintiff] violated rule 4.1 [of the Rules of Professional Conduct] by misrepresenting himself to a third person …. In addition, the court finds that he failed to correct the misrepresentation at any time," and that when the officer called the plaintiff, the officer "identified himself as a prospective client and [the plaintiff] identified himself as Attorney Spears." Use of the word "impersonating" in the news articles accurately describes the conduct detailed in the suspension decision.

[C.] Second, although the 2015 articles omit the court's finding that when the plaintiff was first called by the police officer, that officer identified himself not as a police officer but as a prospective client, "[a]s long as the matter published is substantially true, [a media defendant is] constitutionally protected from liability for a false light invasion of privacy, regardless of its decision to omit facts that may place the plaintiff under less harsh public scrutiny." The statement that the plaintiff was suspended for "impersonating" Spears was substantially true even with that detail omitted.

[D.] Additionally, we agree with the trial court that the 2015 articles do not "[advance] the proposition that [the plaintiff] had advised the [suspect] to ignore the police …." Instead, as the court noted, they accurately reported that the officer was "intent on finding out who had advised the [suspect] to ignore the police," that the suspect had "entered the home based upon what he claimed to be the advice of his counsel," and that the police officer "then attempted to find out the name of the attorney that had given [the suspect] the advice to enter the property under the belief that the attorney had committed an offense and that he had violated ethical canons." (Emphasis omitted; internal quotation marks omitted.) Those statements are substantially fair, true, and accurate, and, accordingly, they are protected by the fair report privilege….