Kirk Adams : Hi - thanks for the question.
Kirk Adams : Any attorney would have liability if he/she KNEW that the client was providing false information.
Kirk Adams : .....if the attorney passed it off as true.
Kirk Adams : However, attorney's usually don't have liability because they don't KNOW that the information is false. Instead, most attorneys will not know for a certainty, so they have insulation from such a claim.
Kirk Adams : However, if it is proven that the client KNOWINGLY made false statements or gave false information to the court via his/her attorney or through testimony, the client could be liable to the court via perjury charges.
I was seeking a defamation count against the client on top of numerous other counts of tort. Would not defamation be appropriate if an unsubstantiated allegation was made, through the attorney, that met with the term "imputing to another a criminal offense amounting to a felony."?
Kirk Adams : A defamation claim could be filed IF you can prove that the person knowingly made a false statement about you in an attempt to harm one's character. But if the statement occurred in court, it may be very difficult to claim that as defamation because most statements made in court or allegations in a lawsuit can't be the basis for a defamation claim.
Let me confirm something. IS THE CLIENT accountable for whatever harm his attorney does to another, while acting in his name?
Kirk Adams : Generally, no - - because allegations made in a lawsuit can't be grounds for defamation. This is so because the main purpose of litigation is to make allegations and then try to prove them.....
There is no lawsuit. There was no court trial, at least not where the party in question is concerned.
The defamation was a felonious allegation made in a letter through an attorney, who then appeared in a non related court hearing and repeated that allegation without being a witness or having a cause for being there, and combined the two incidents defamed the first person's trust with his creditors, who were in the court, at a hearing for bankruptcy.
The charges were unsubstantiated, unfounded, and as a result the defaming party profitted by the loss of the first party's property in bankruptcy.
Kirk Adams : Ok. That's an interesting situation for sure.
Defamation applicable? (Hypothetically speaking, :-))
Kirk Adams : In this situation, I think you can make the case that the letter is defamatory if it can be proven that the information from the letter was given to the lawyer by this person, and that the person knew it was false and presented it to his/her attorney as true.
Kirk Adams : This would be no different (logistically) than a news reporter publishing a defamatory statement made by one person about another.
Kirk Adams : The reporter wouldn't be liable for publishing the statement - - but the speaker would.
Confidentiality wouldn't apply; as the letter was then used to undermine the Trustee (first person) with the corporation's bankruptcy attorney, who quit as a result.
Kirk Adams : There's no confidentiality if the letter was read in open court and the attorney spoke about it's content.
The letter was never read in open court; but the co-counsel of the author appeared in open court (uninvited) and repeated similar allegations given by his client. Regarding the "punitive damages" issue, you might look at "Saunders Hardware Five and Ten, inc. v. Low, 307 So. 2d. 893 (Fla. 3d DCA 1974)" There is an interesting opinion there... "punitive damages may be awarded even though the amount of actual damages is neither found nor shown"
"...for in such a case, the requirement of showing of actual damages as a basis of an award for exemplary damages is satisfied by the presumption of injury which arised from the showing of libel or slander that is actionable per se."
Kirk Adams : I read the other case you cited, and Florida law , and is says that damages for defamation per se are presumed, and that's why there may be a way to get to punitives without PROOF of damages.
Kirk Adams : HOWEVER, there must still be an AWARD of actual/general/compensatory damages before punitives can be allowed.
Kirk Adams : The Lawnwood case actually says that Florida law caps punitive damages to 3 times the amount of compensatory damages up to $500,000.
Kirk Adams : Thus, compensatory damages MUST be awarded as a prerequisite to punitives being allowed.
Kirk Adams : What the cases you are reading say is that you don't necessarily have to be able to PROVE damages because defamation per se presumes damages.
I know. But they can be nearly nothing; only figurative. However, in the hypothetical issue we're discussing the numbers are in the high six figures, so this is just frosting on the cake. But deserved and justified. I don't know if you got to the judge's comments on the earlier case (Lawnwood Medical Center v. Sadow), but they were unprecedented from a century back rights to a man's good name being upheld. Citing "Thou shall not bear false witness against they neighbor." Adding that Florida is unmatched in how it sees the preservation of one's good name, and legal damnation for those who defame it.
Kirk Adams : This is a good thing because damages for defamation are SO hard to quantify.
If you google "slander per se, florida" you'll get some great citings.
Some is law firm P.R., but their comments and case law are valid.
Kirk Adams : The Lawnwood case has some good headnotes, and the law in FL is basically the same as it is in other states in regard to defamation per se and punitive damages.
Kirk Adams : The only real difference is the cap on punitives is actually less in FL than in may states.
Might I ask what state you're licensed in?
Kirk Adams : Several, actually......
Kirk Adams : I'm licensed to practice in state/federal courts of Mississippi, Tennessee, Louisiana, Texas and Kentucky and Ohio.
Kirk Adams : However, my primary practice is in Tennessee and Mississippi, but I have actually tried several cases in Florida under the pro hac vice allowance of the Supreme Court.
Supreme Court? Cool. That's great on the resume. Well, I appreciate your insight and time on this subject. I'm from Memphis, although now in Florida. Thanks a lot!
Kirk Adams : Most of the cases have involved commercial construction cases. I represent several national construction companies, so I travel where they need me for certain cases.
Kirk Adams : My entire family lives in the Memphis area - - love the Bluff City!
I miss it. But Memphis has changed a lot in the last 20 years. I'll look forward to your expertise again; and saved you in my arsenal of experts.
Have a great weekend.
Kirk Adams : You too. Glad to help.
Kirk Adams : Please let me know if you need something further.