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The most anticipated libel trial on the Eastern District’s docket hasbeen canceled now that the ABA Journal has agreed to pay an undisclosedsum to attorney Richard A. Sprague and to publish a half-page apology inits February magazine that will say it intended nothing but praise whenit described Sprague as “perhaps the most powerful lawyer-cum-fixer” inPennsylvania. Sprague’s lawyer, James E. Beasley Sr., said the amount of money to bepaid to Sprague is confidential, but that he considers it a “damned goodsettlement.” American Bar Association spokeswoman Nancy Cowger Slonim declined tocomment beyond a joint press release that said the two sides had reached”an amicable resolution” of the case which “includes a payment to Mr.Sprague, the amount of which is confidential.” Beasley said the promise of a prominently published apology was acritical aspect of the settlement. The apology reads in part: “Intending to praise Mr. Sprague as ahighly-regarded and outstanding attorney, we said that he was ‘perhapsthe most powerful lawyer-cum-fixer’ in Pennsylvania. Although werecognize that the word ‘fixer’ has a negative connotation in somecontexts, we did not intend to disparage Mr. Sprague in any way. Rather,we intended the word to mean someone who is skilled in resolvingproblems in high-profile, complex cases. We apologize to Mr. Sprague forthe personal distress that resulted from our choice of words.” The settlement cancels a trial that was set to begin Dec. 1 and promisedto feature a parade of high-powered witnesses testifying on Sprague’sbehalf. Potential witnesses listed by Sprague included Sen. Arlen Specter;former ABA president Jerome Shestack of Wolf Block Schorr & Solis-Cohen;former U.S. Attorney and now federal Judge Michael M. Baylson; andPhiladelphia District Attorney Lynne Abraham. If the case had gone to trial, the ABA’s lawyers were asking Senior U.S.District Judge William H. Yohn Jr. to limit the star power on Sprague’switness list, arguing that “the power and prestige of these witnessesare likely to cause the jury to base their decision on Mr. Sprague’sassociation with these important people rather than the merits of thecase.” Filed in January 2001, the suit was intensely fought, but Spraguesurvived every round. Sprague sued over a four-page article headlined”Cops in the Crossfire” in which reporter Terry Carter detailed theunusual court battles that ensued after Philadelphia police officerChristopher DiPasquale shot Donta Dawson, an unarmed black teenager inthe early morning hours of Oct. 19, 1998. When the Philadelphia DA’s office chose not to prosecute DiPasquale, thearticle said, a group of black leaders and elected officials filed aprivate criminal complaint and won a court order that required Abrahamto pursue murder charges. Sprague’s suit quoted and focused on a single paragraph: “The politicalstakes were raised in May when the DA accepted outside help in the casefrom her former boss, Richard Sprague, perhaps the most powerfullawyer-cum-fixer in the state. The appearance of the storied DickSprague set off alarms in the black precincts. Within a week, theybrought in their own big guns.” The suit also quoted a clarification printed in the November 2000 ABAJournal that said: “Attorney Richard Sprague has objected to a referencemade to him in ‘Cops in the Crossfire.’… The Journal intended thereference to mean that Sprague is known for his problem-solving skillsin politically nuanced cases. The Journal did not intend to convey thatSprague has engaged in any unethical or illegal activity. The Journalregrets any confusion that may have arisen from its reference toSprague.” Beasley said yesterday that the clarification was “totally unacceptable”because it made no mention of the term “fixer.” In the suit, Beasley argued that the article falsely implied thatSprague has “fixed” cases and “used ‘power’ to influence and/or arrangetheir outcomes by improper and/or unlawful means.” Such a description, the suit said, “falsely ascribed to [Sprague]conduct and a character that would adversely affect his fitness toproperly perform the practice of law.” The ABA’s lawyers — Joyce S. Meyers, David Marion and Michael Twerskyof Montgomery McCracken Walker & Rhoads — tried several times to winthe case on paper. They first asked for the suit to be dismissed on the grounds that thereference to Sprague was not even capable of defamatory meaning, arguingthat the description of Sprague was clearly meant as a compliment andthat Sprague was taking a few words out of context. “The use of the term ‘fixer’ to describe a prominent, highly successfullawyer, widely known and sought after for his effectiveness as aproblem-solver and trouble-shooter in connection with politicallysensitive issues and cases, is not unusual,” they wrote. In its answer to the suit, the ABA attached a list of more than 100examples of prominent lawyers described as “fixers” in such publicationsas The New York Times and the Washington Post. Among those described as “fixers” in the articles are Vernon Jordan, aWashington attorney and friend to former President Clinton; former O.J.Simpson defense attorney Robert Shapiro; and Washington lawyers CharlesRuff (described by friends as “Mr. Fixer”); the late Clark Clifford;Bruce Lindsey; and Lloyd Cutler. But Yohn sided with Sprague and found that the term “fixer” also has anegative meaning that includes the criminal act of “fixing” cases. Yohnfound 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 findthat readers of ABA Journal could possibly have understood the term’fixer’ to be defamatory,” Yohn wrote. The ABA won the next round in the litigation by default when its heftycourt filings seeking a ruling that Sprague was a “public figure” –whose libel suit must be judged on an actual malice standard — was metwith a one-page response from Beasley that conceded that Sprague was atleast a “limited purpose” public figure. In July 2002, the ABA’s lawyers moved for summary judgment, arguing thatSprague didn’t have the evidence to meet the actual malice standard,which calls for “clear and convincing” proof that the magazine “in factentertained serious doubts as to the truth of his publication.”Yohn again refused to dismiss the suit. In a decision that cleared the way for the case to go to trial, Yohnruled that a jury could conclude the magazine acted with actual malicewhen it described Sprague as a “fixer.” Yohn found that since the magazine’s employees were aware that the term”fixer” has both positive and negative meanings, a jury could concludethat they “either deliberately cast this description in an ambiguouslight in the hope of insinuating a false import to the reader, or thatdefendants knew or recklessly disregarded the possibility that its wordswould be interpreted by the average reader as false statements of fact.” But Yohn also emphasized that his ruling was no indication of his ownopinion on the merits of Sprague’s case. Instead, he said, the decisionmerely recognized that the case presents a question that must be decidedby a jury. “I in no way intimate what I believe the correct resolution of thisquestion should be. From the court’s restricted procedural posture ofconsidering defendants’ summary judgment motion, I find simply thatthere is evidence that, if believed and weighed as plaintiff urges,could support a jury finding, by convincing clarity, that defendants’publication was imbued with actual malice,” Yohn wrote.

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