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Attorney Richard Sprague has cleared a significant hurdle in his defamation lawsuit against the American Bar Association and its monthly magazine, the ABA Journal, now that a federal judge has ruled that readers of the magazine could have attached defamatory meaning to the magazine’s labeling Sprague a “fixer.” The ABA’s lawyers had urged U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania to dismiss the suit, arguing that the description of Sprague in an October 2000 article as “perhaps the most powerful lawyer-cum-fixer in the state” was clearly intended as a compliment. “The use of the term ‘fixer’ to describe a prominent, highly successful lawyer, widely known and sought after for his effectiveness as a problem-solver and trouble-shooter in connection with politically sensitive issues and cases, is not unusual,” wrote attorneys David H. Marion and Joyce S. Meyers of Philadelphia-based Montgomery McCracken Walker & Rhoads. But Yohn sided with Sprague and found that “fixer” also has a negative meaning that includes the criminal act of “fixing” cases. Yohn found that the ABA Journal‘s use of the term was not absolutely clear — even when read in context. “Because of this ambiguity in the context of the article, I must find that readers of ABA Journal could possibly have understood the term ‘fixer’ to be defamatory,” Yohn wrote in Sprague v. The ABA. Sprague sued over a four-page article headlined “Cops in the Crossfire” in which reporter Terry Carter detailed the unusual court battles that ensued after Philadelphia police officer Christopher DiPasquale shot Donta Dawson, an unarmed black teenager in the early morning hours of Oct. 19, 1998. When the District Attorney’s office chose not to prosecute DiPasquale, the article said, a group of black leaders and elected officials filed a private criminal complaint and won a court order from a black judge that required District Attorney Lynne Abraham to pursue murder charges. Sprague’s suit focuses on a single paragraph: “The political stakes were raised in May when the DA accepted outside help in the case from her former boss, Richard Sprague, perhaps the most powerful lawyer-cum-fixer in the state. The appearance of the storied Dick Sprague set off alarms in the black precincts. Within a week, they brought in their own big guns.” In its November 2000 issue, the magazine printed a clarification that said: “Attorney Richard Sprague has objected to a reference made to him in ‘Cops in the Crossfire.’… The Journal intended the reference to mean that Sprague is known for his problem-solving skills in politically nuanced cases. The Journal did not intend to convey that Sprague has engaged in any unethical or illegal activity. The Journal regrets any confusion that may have arisen from its reference to Sprague.” In his suit, Sprague and his lawyer, James E. Beasley of Philadelphia’s Beasley Casey & Erbstein, allege that the article falsely implied that Sprague has “fixed” cases and “used ‘power’ to influence and/or arrange their outcomes by improper and/or unlawful means.” Such a description, the suit says, “falsely ascribed to [Sprague] conduct and a character that would adversely affect his fitness to properly perform the practice of law.” But the ABA’s lawyers argued that Sprague’s suit should be tossed out because it is “based on three words taken out of context” and “relies on a forced, strained and unreasonable interpretation of the words.” Now Judge Yohn has refused to dismiss the suit in an 11-page opinion that includes several capsule accounts of the use of the term “fixer” to describe notorious criminals. Yohn found that readers of the ABA Journal are usually members of the bar and are therefore a “sophisticated audience.” “Trained in law school, such readers would be tuned to nuance and be conscious of word choice. Such readers would be aware that the term ‘fixer,’ as defendants admit, does have two meanings,” Yohn wrote. One of those meanings, Yohn said, is the one the magazine insists that it intended — that Sprague has a reputation as a politically savvy lawyer who can achieve results for his clients that others with fewer skills or connections could not. But Yohn said Sprague had also proven that the term “fixer” is used by lawyers and judges to refer to illegal and improper acts. “Attorneys who arrange to pay judges or bribe administrative agencies for the outcomes they desire have commonly been called fixers,” Yohn wrote. In a case from the Northern District of Illinois, attorney Thomas J. Maloney of Chicago was convicted on charges of paying judges to acquit his criminal clients. In one particularly high-profile murder trial, Maloney arranged for his client to appear before a Cook County judge, who, after payment of $10,000, acquitted the client from the bench. “Through a series of results such as this Maloney gained the reputation of being a ‘fixer’ in criminal circles,” Yohn wrote. Likewise, Yohn found that attorney Harry Schwimmer earned the label “fixer” in an opinion from the 8th U.S. Circuit Court of Appeals for his efforts to prevent a client from being prosecuted for tax evasion. Schwimmer met frequently with the government agents in charge of the case against his client, going so far as to channel money into their accounts, present them with custom-made suits, and purchase oil royalties for them. “Newspapers and magazines have commonly used the term ‘fixer’ to describe those who exert illegal influence over powerful actors,” Yohn wrote. But the ABA’s lawyers argued that media accounts are also replete with the use of the term ‘fixer’ in the complimentary sense, such as a profile of attorney Lloyd Cutler that described him as one of Washington, D.C.’s “superlawyers,” a political “fixer,” and a corporate lobbyist, but also ethicist and “general-purpose wise man.” Yohn found that the ABA’s long list of positive uses of “fixer” wasn’t enough to prove that the use of the term to describe Sprague was not defamatory. “The specific description of Sprague as a ‘lawyer-cum-fixer’ in the ABA Journal contained no additional modifiers,” Yohn wrote. “There is no direct reference in the article to Sprague’s political skills.” In the context of the article, Yohn said, Sprague’s presence caused “alarm” in the black community which reportedly responded by hiring its own “big guns” — three lawyers described in the article as “a big-firm partner and the first black president of the Philadelphia Bar Association,” “the pre-eminent civil rights litigator in Philadelphia,” and “a prominent former federal prosecutor.” Yohn said Sprague was referred to as “one of the most aggressive lawyers in the city” in a quote from an ACLU lawyer summing up the battle lines. The reporter, Yohn said, concluded that a “mix of politics and criminal justice” was leveraging the young man’s death. As a result, Yohn concluded that Sprague has a valid defamation claim. “Without direct modification, the contextual reference to Sprague as a ‘fixer’ could have either connotation,” Yohn wrote. “Either Sprague’s opponents could be alarmed because he is a challenging adversary on the political and legal playing fields, or they could be alarmed because they believe that he has a reputation for conducting illegal activities for the benefit of his clients.” But Yohn found that the question of whether the article defamed Sprague isn’t a simple one. “It is arguably less likely that the black community would respond by hiring lawyers of the caliber listed if it believed that Sprague conducted illegal activities — presumably the community would instead seek a law enforcement investigation — but the article notes the charged atmosphere in which the black community complained that it had not already received appropriate assistance from law enforcement on issues,” Yohn wrote. “The black community’s alarm at Sprague’s addition could stem then from being forced to fight its political battle on another front as well. The author concludes that politics and criminal justice have become entwined, but even that reference remains slippery,” Yohn wrote.

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