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Client Can Sue Firm for Absence of Defamation Claim, Judge Says
New York Law Journal
June 05, 2008
A Manhattan federal magistrate judge has ruled that a legal malpractice claim may proceed against a law firm for failing to bring defamation claims on behalf of a client in a high-profile sexual harassment and discrimination case.
Kenneth P. Thompson of New York-based Thompson Wigdor & Gilly represented Michelle Joyce and Kimberly Osorio in a 2005 suit filed against hip-hop magazine The Source. Osorio, the magazine's former editor-in-chief, and Joyce, a former marketing executive, alleged pervasive sexual harassment and a hostile work environment.
The suit claimed discrimination, retaliation and wrongful discharge on behalf of both women but defamation only on behalf of Osorio, based on an interview in which The Source co-owner Raymond Scott said she had tried to extort the magazine.
Joyce's claims were dismissed by Southern District of New York Judge Jed S. Rakoff in August 2006. That October, a jury awarded Osorio $8 million, of which $3.5 million was for the defamation claim.
In the suit Joyce filed against Thompson Wigdor in December 2006, she claims the firm should have brought defamation claims on her behalf as well, based on statements made by The Source defendants in April 2005.
At that time, the defendants said in a news release that they "suspect Ms. Joyce falsified health claims in an effort to attack The Source when she learned that she was going to be terminated." Scott said in a subsequent interview that Joyce "didn't even do nothing around here" and "faked that she was having breast cancer so that we wouldn't fire her."
In moving to dismiss Joyce's claims, Thompson Wigdor argued that the statements she cited constituted nonactionable opinion. But while Southern District Magistrate Judge Gabriel W. Gorenstein agreed that the statement that Joyce did "nothing" at The Source was an opinion, he said statements that she faked a medical condition were libelous per se.
"[T]he faking of a serious illness to avoid being fired has a precise and definite meaning and it is readily capable of being proven to be true or false," the magistrate judge wrote in Joyce v. Thompson Wigdor & Gilly, 06 civ. 15315.
"Here, an average reader would assume that because The Source was Joyce's employer, it was the entity with the most direct knowledge of whether she had made false claims regarding her health to her employer," the judge wrote. "Accordingly, when The Source stated that it 'suspect[ed]' that fact to be true, the reader would assume The Source had facts supporting its statement."
Similarly, Gorenstein said, because Scott was an executive of Joyce's former employer, he was "a person that a reader would assume had actual knowledge of whether Joyce had faked breast cancer to avoid being fired."
The judge dismissed Joyce's other claims for negligence, breach of contract and breach of fiduciary duty as duplicative of the malpractice claim.
Thompson did not return a call seeking comment. The firm's lawyer, David Wilck of Rivkin Radler of Uniondale, N.Y., declined comment pending a final order on the magistrate judge's recommendation by Southern District Judge Robert L. Carter.
Joyce is represented by Bruce Ressler of Ressler & Ressler in New York.
