After a disgruntled client posted a review on Yelp page of his former attorney, and the attorney responded, the attorney sued the client for defamation. The client responded by filing counterclaims for defamation, breach of fiduciary duty, and legal malpractice. The district court dismissed the client’s counterclaims for breach of fiduciary duty and malpractice while denying the attorney’s motion to dismiss the defamation counterclaim. The court then denied cross-motions for summary judgment, finding that genuine disputes of fact remained.
Alisa Levin is an attorney licensed in Illinois. Paul Abramson is a resident of California Abramson hired Levin to assist a different attorney with writing services in an Illinois lawsuit. Abramson alleged that he hired Levin as a ghostwriter, and her name was not to be included in any filings. Abramson paid Levin a $4,000 retainer and signed a written retainer agreement specifying that Levin would charge $315 an hour for her time.
In December 2015, Levin sent Abramson an invoice for 37.5 hours of her time, which resulted in fees of $9,167 over and above the $4,000 retainer. Abramson responded and disputed the amount, but Levin charged Abramson’s credit card later that day. Abramson then terminated Levin shortly after that by asking her to stop work in an email. Abramson then made complaints to the Chicago Bar Association and Illinois Attorney Registration and Disciplinary Committee. Abramson also initiated a chargeback dispute with his bank, but after an investigation the bank returned the funds to Levin in June 2016. In 2017, Abramson began invoicing Levin’s firm and had a collection agency make calls to Levin.
In March 2017, Abramson, using the name “Van R.,” published a review on Levin Law’s Chicago Yelp profile. The review alleged that Levin went vastly over the retainer budget and charged Abramson’s credit card. The review also stated that Levin’s pleadings were struck by the court and that Levin was not aware of how to draft an affidavit that did not require a notarized signature. Levin posted a reply to the review later that day that identified Abramson as the author and disputed the characterizations in the review. Levin and Levin Law then sued Abramson for defamation and false light invasion of privacy based on the review. Abramson counterclaimed for defamation, legal malpractice, and breach of fiduciary duty based on Levin’s response to his review.
In March 2018, the district court denied Abramson’s motion to dismiss. Levin then moved to dismiss the counterclaim, moved to strike Abramson’s affirmative defense, and moved for summary judgment. Abramson then cross moved for summary judgment, and the case was reassigned in August 2019 to Judge Pacold.
The district court began by finding that Abramson’s counterclaim was timely. The court stated that Levin’s claims accrued on the date that Abramson published his Yelp review, in March 2017, and that Abramson’s claim accrued on the same date, as that was when Levin published her response. The court then determined that Abramson’s counterclaim for defamation could survive Levin’s motion to dismiss, as Levin failed to provide any authority suggesting that the false swearing provision of Illinois law concerning defamation per se was inapplicable.
Next, the court found that Abramson’s claims for breach of fiduciary duty and legal malpractice were insufficient. The court stated that, without context, the fact that a court struck documents drafted by Levin did not support a plausible inference that Levin caused Abramson to lose actual, specific, meritorious defenses. The court noted that Abramson did not explain how he lost the case he alluded to in his claim, or why Levin’s actions caused him to lose. The court then determined that it did not need to decide whether Levin’s Yelp response breached a duty of confidentiality, as Abramson failed to plausibly allege that the breach caused any injury.
The court then turned to Levin’s motion to strike Abramson’s affirmative defenses. The court preserved Abramson’s affirmative defenses of failure to mitigate, substantial truth, and unclean hands. However, the court struck Abramson’s defenses of no damages, set off, unjust enrichment, and his “catchall” affirmative defense. Finally, the court addressed the cross motions for summary judgment.
The court found that several of Abramson’s statements in his review were statements of opinion, not fact, and therefore were not actionable as defamation. However, the court stated that Abramson’s claim that Levin illegally charged his credit card and that his credit card company later recovered this amount were statements of fact that had readily understood meanings. The court similarly decided that Abramson’s statements that Levin exceeded the retainer budget and that her pleadings were stricken by a court were statements of fact. The court further found that all of these statements fell within recognized categories of per se defamation. The court determined however that there were genuine disputes of fact and that neither Levin nor Abramson was entitled to summary judgment as a result.
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