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Attorney Ethics Grievance Used to Avoid First Amendment Protections to Arguably Thwart Harsh Criticism of Expert Witness

In order to file a lawsuit against an individual or organization alleging violation of the law, the plaintiff must be able to allege specific and clear violations of the law, as well as actual damages the plaintiff suffered as a result of the alleged violation. This is as true of defamation lawsuits as it is of any other law.

Although the First Amendment protects every citizen’s right to free speech, it does not allow public statements about other people who are public figures that are intentionally or deliberately false and accuse of them of certain types of misconduct and prohibits false statements against ordinary people that wrongly accuse them of certain types of misconduct. In order to be considered defamatory, a statement has to be made publicly, and with the result that the target suffered damage to their public reputation and/or career. Opinions and general rhetoric do not qualify as defamation.

If a plaintiff chooses to file a claim for defamation, the burden of proof rests on her to provide evidence that the statements qualified as defamation and did damage to her reputation and/or business. Because the main goal of the First Amendment is to encourage open debate of influential figures, public figures have a higher burden of proof to bear when claiming a defendant made defamatory statements knowing they were false and with the intention of causing harm to the plaintiff’s career.

Dr. Rosalind Griffin, a Michigan psychiatrist who also testifies as a medical expert for parties defending against tort claims, has filed a defamation lawsuit against a Michigan attorney. Steven Gursten, who specializes in representing accident victims, published a post on his blog calling Griffin “notorious” and accusing her of testimony of being a “hatchet job”.

There is arguably little to recommend Griffin’s case if it were pursued as a libel case in court as opposed to as an ethical grievance against Gursten. To start with, the statements to which Griffin refers are nothing more than opinion and non-actionable rhetoric, which means the allegations will have no standing in a court of law.

Second, Gursten’s blog post can easily be considered part of the free market in which consumers should be able to educate themselves on the various services available and the professionals who provide those services. As a professional who renders services, both to the general public and to defense attorneys, Griffin arguably has standing as a public figure and therefore should open to ridicule or criticism, so long as those criticizing statements are not deliberately false.

Despite the flimsiness her case would likely have as a civil libel case, the Michigan Attorney Grievance Commission (of which Griffin is a member) has begun an investigation into Griffin’s claims, demanding Gursten submit a detailed response to Griffin’s allegations. The Commission further warned Gursten that failure to provide a response would be enough to be considered attorney ethical misconduct and could result in disciplinary action from the Commission.

As a result, Gursten has been forced to spend money and resources on an attorney in order to defend himself against the investigation. He may be able to successfully defend himself against this particular case, but if the Commission is permitted to conduct an investigation into every single complaint, including ones such as Griffin’s that would not likely withstand First Amendment scrutiny a  court case, the result could be disastrous for the First Amendment. Any attorney without the resources to adequately defend themselves against an investigation would have no choice but to retract offensive statements, regardless of their veracity or usefulness to the general public.  This would have a chilling effects on lawyers’ ability to criticize key players in the legal system and offer their bird’s eye view criticisms and suggestions to improve the justice system.  Lawyer ethics rules and complaints should not be used as a tool to stifle debate and the free exchange and publication of harsh opinions.

In order to file a lawsuit against an individual or organization alleging violation of the law, the plaintiff must be able to allege specific and clear violations of the law, as well as actual damages the plaintiff suffered as a result of the alleged violation. This is as true of defamation lawsuits as it is of any other law.

Although the First Amendment protects every citizen’s right to free speech, it does not allow public statements about other people or companies that are false or deliberately misleading. In order to be considered defamatory, a statement has to be made publicly, with the knowledge that it is false, and with the result that the target suffered damage to their public reputation and/or career. Opinions and general rhetoric do not qualify as defamation.

Our Chicago libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Naperville, Burr Ridge and Hinsdale, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorneys Peter Lubin and Vincent DiTommaso Super Lawyers in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. DiTommaso-Lubin’s Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, defamation, libel and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

DiTommaso-Lubin’s Palatine and Hoffman Estate’s defamation and slander lawyers have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Wauconda and Libertyville, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at (877) 990-4990 or online by filling out our contact us form.