Image: Clipart.com
A suit in Morris County appears to be the first instance in New Jersey of one legal-malpractice attorney suing another for defamation over criticism in a blog posting.
The suit, Michelson v. Voorhees, MOR-L-2694-11, filed Sept. 23, concerns William Voorhees Jr.'s comment about a case in which William Michelson provided an expert report that a court deemed an inadmissible net opinion.
The complaint seeks, in addition to compensatory and punitive damages and legal fees, an order that the post be removed or at least "recast in much more accurate and uninsulting terms."
On March 11, the day after the Appellate Division upheld summary dismissal of the legal-malpractice claim in Hedinger & Lawless LLC v. Betal Enterprises, Inc., A-4797-09, Voorhees posted an entry on his New Jersey legal-malpractice Blog, titled "William H. Michelson Net Opinion Dooms Plaintiff's legal-malpractice Case."
After describing the court's criticism of the expert opinion, Voorhees stated, "In other words, the Michelson report contained virtually every fault you could find in a net opinion."
Voorhees, a Chester solo, warned in his post that lawyers who represent legal-malpractice plaintiffs be "very leery," adding, "There are any number of experts out there who are willing, for a fee, to testify to virtually any nonsense. This is a case in point."
He suggested consulting a "solid expert" instead and heeding such an expert "who tells you that you have no case" rather than "wasting your time and your client's money to obtain a report like this one which is going to be totally disregarded by the Courts."
Michelson, a Fanwood solo, says he learned what Voorhees had posted when it was used as the basis for seeking summary dismissal of a malpractice case where he is the plaintiffs expert.
Defendant Eldridge Hawkins Sr., an East Orange solo, "must have Googled to find something to discredit me and found the article and built a summary judgment motion around it," says Michelson.
The motion was denied but Hawkins was "trying to make the point that my testimony was going to be defective" and the incident "proves my point that I'm susceptible to professional disrepute" on account of the article, Michelson adds.
In an interview, Hawkins says the motion was not denied on the merits but because it was filed too close to trial.
Before suing, Michelson claims he emailed Voorhees a message to the effect, "what did I ever do to you, I barely know you," but never heard back.
The suit accuses Voorhees of deliberately trying to draw internet searchers to the post by placing Michelson's name so prominently, causing him to "endure considerable negative exposure, both to his business and professional reputation" that will continue as long as the article remains up.
A Google search for "William H. Michelson" done last week brought up Michelson's firm website as the first result, with the link to the Voorhees post right below it.
A search without the middle initial did not bring up the article within the first 25 pages. Michelson alleges that at one point it would have appeared on page 2. Adding "attorney" or "lawyer" to the name brought up the article on the third page of results.
"How do I prove that six months ago someone ... saw this and decided not to call me?" asks Michelson in an interview, adding that is why defaming someone's competence in their profession is defamation per se, which is actionable without proof of specific damages.
He says the title of the comment implies that his opinion killed a viable claim, and the body of it suggests that he would have said anything for a fee and that it is a waste of the client's money to hire him, even though Voorhees never read the expert opinion. He says he helped the pro se client in Hedinger & Lawless win on appeal on the issue of whether a lawyer-client relationship existed.
Voorhees, a past president of the Morris County Bar Association, has not yet answered the complaint, but he notified his malpractice carrier and retained Thomas Cafferty of Gibbons in Newark.
Voorhees says of the lawsuit, it "has as much merit as the expert report rendered by Mr. Michelson commented upon by the Appellate Division in the Hedinger & Lawless case."
He says he plans to demand that Michelson withdraw the complaint as a frivolous pleading and to seek sanctions against him if he fails to do so.
Voorhees says that in his almost three years of blogging he has never before been threatened with litigation.
He knows of only two other legal-malpractice blogs: Andrew Bluestone's New York Attorney Malpractice Blog and the Legal Profession Blog, which is edited by law professors and also covers legal ethics issues.
Bluestone was sued in 2008 for mentioning a malpractice case that accused Brooklyn solo Marina Tylo of serving a summons before she purchased an index number as required by New York law.
Bluestone, a Manhattan solo, says Tylo dropped the case after he moved to dismiss it. He adds that lawsuits are an "occupational risk" for bloggers generally and "when you're dealing with lawyers, it's more dangerous."
Tylo could not be reached for comment.
Voorhees has been a speaker on legal ethics issues for the New Jersey Law Journal Lecture Series.
Subscribe to New Jersey Law Journal
