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Lawyer Says Lawyer Defamed Him in Press Release About Defamation Suit
The National Law Journal
October 06, 2009
Attorney Robert A. Clifford
Robert Clifford, a well-known personal injury lawyer in Chicago, warns that Illinois lawyers won't be able to speak to the press about their own cases if an appellate decision against him is allowed to stand.
Clifford is being sued for defamation over a press release his firm issued in another case. In a petition to the Illinois Supreme Court, he asks the court to overturn the August appellate ruling based on his fair report privilege to discuss a public court filing without being liable for defamation. The Appellate Court of Illinois, First District, said Clifford lacked the privilege because his firm wrote the court filing that was the focus of the release. In essence, the court said, Clifford can't confer the privilege on himself.
"The appellate court's decision freezes the ability of Illinois lawyers to publicly discuss their clients' cases," Clifford's attorneys said in the Sept. 29 petition. "This court's intervention is required to reverse this severe chilling effect on free speech and zealous advocacy."
Clifford of Chicago's Clifford Law Offices was sued for defamation by Chicago attorney David Missner in connection with bankruptcy proceedings that reach back to 2000. Missner had filed a motion on behalf of a bankruptcy client with a supporting affidavit to stay arbitration, asserting that the arbitrator had an undisclosed tie to Michael Ficaro, a lawyer for one of the parties in arbitration. Ficaro of Chicago-based Ungaretti & Harris later filed a lawsuit against Missner and other lawyers contending that the affidavit defamed him. Missner, in turn, sued Clifford, who was representing Ficaro, over statements that Clifford's firm made in a press release about Ficaro's lawsuit against Missner.
Missner, who was a lawyer at DLA Piper when the matter arose and is now at Rally Capital Services as a senior financial consultant, declined to comment. Philip Nathanson of Chicago-based Nathanson Law Firm, who is representing Missner, also declined to comment.
Peter John, a partner with Williams Montgomery & John in Chicago who represented Clifford in the initial complaint, declined to comment, citing the appellate court's decision. Charles Tobin, a Washington partner at Holland & Knight who is representing Clifford in the appellate proceedings, couldn't be reached for comment.
Allowing the appellate court's "self-conferral" exception from the fair reporting privilege to stand will make Illinois lawyers "more vulnerable to defamation litigation than elsewhere in the country," Clifford's attorneys said in the petition.
Michael Conway, a Chicago partner at Foley & Lardner who leads his firm's media law group, agrees that the self-conferral exception should be overturned. Lawyers are usually in the best position to summarize their own court filings or statements, he said. He also noted that government lawyers aren't hamstrung by the exception.
"To me, it thwarts the communication to the public," said Conway, who once worked at the same firm as Ficaro but is not involved in the litigation.
