Lawyer Who Doesn’t Understand Defamation Law Sends C&D To Newspaper For Reporting On Court Documents
It really doesn't seem like too much to ask that legal representatives who are specifically trained to handle legal work actually know what the fuck they're doing when they engage in legal representation. While I understand that not every lawyer's competence will be equal, I don't believe we should be expected to put up with litigation hijinks from highly paid professionals" who seem no better informed than the average Hacker News commenter.
And, yet, here we are, dealing with this sort of ridiculousness. To be clear, we at Techdirt aren't directly affected by this. But we are reporting on it. Those directly affected work for the Boston Herald, which has been hit with a ridiculous, uninformed cease-and-desist demand from a lawyer who should know better on behalf of a client who should probably try to find a better lawyer.
An attorney for the Boston Water and Sewer Commission's suspended HR Director Marie Theodat has demanded the Herald cease and desist" all reporting on her client on grounds that this paper's lawyer has deemed frivolous and lacking legal standing.
Lana Sullivan, an attorney who represents Theodat in at least one of several civil lawsuits filed in Suffolk Superior Court, sent a cease-and-desist letter to the Herald. The letter seeks to prevent further reporting on her client on the grounds that she is a private" rather than a public" figure.
The paper's lawyers are completely in the right. And it doesn't matter how histrionic the C&D is. What happened here isn't defamation and the (now-suspended) head of a quasi-public utility commission isn't exactly a private" figure - at least not in terms of the issues covered by the Herald's reporting.
Nonetheless, this is what Lana Sullivan asserted in her letter on behalf of her under-served client:
As you know, the Boston Herald has published a number of false and defamatory statements purporting to connect the involvement of Ms. Theodat, a private citizen who is not a public figure, in personal civil litigation that is of no legitimate public concern, with her job performance at Boston Water and Sewer Commission," Sullivan wrote.
The C&D is pretty vague about what is actually false and defamatory" because it has to be. There's nothing false or defamatory here because the sources utilized by the Herald were public records: court documents and publicly accessible records generated by Theodat's employer.
The paper simply reported the established facts: Theodat had been given several pay increases (61% in total since 2019) while she was named as the defendant in multiple civil lawsuits and the subject of several fraud allegations. One case involves her alleged defrauding of her uncle, swindling" him out of his home while taking advantage of his increasing dementia. In another case, Theodat was found liable for refusing to repay a $75,000 mortgage loan.
The commission she works for also took action, demanding the utility commission open an investigation into her alleged malfeasance.
All of this comes from court records and publicly available data. And nothing in the C&D says otherwise, even though it tries to insinuate the paper did something wrong without actually specifying what Theodat and her lawyer believe the paper did wrong.
That resulted in this solid rebuttal from the paper, which exposes the C&D to be the weakest of sauces:
[Y]ou appear to complain, although you do not identify what it is that you claim is actionable in any way, about the Herald's reporting on public proceedings. You do not identify any statement that it made which was false, but as you also know, any such reporting is encompassed by the Fair Report Privilege...
That's how you know the desist demand is bullshit. If the lawyer and potential plaintiff can't actually provide a direct quote of the article being agitated about, it's readily apparent this isn't about any possibly actionable legal issue, but rather an attempt to bluster someone into a retraction or silence. But the paper knows the law. And its lawyers are far too kind to Theodat's legal rep when they suggest that this lawyer knows" this kind of reporting is covered by the Fair Report Privilege. Even if the lawyer knows this, she still wrote the C&D and signed her name to it.
This won't go anywhere after this. I mean, I would hope. But hope springs equally eternal in pissed-off subjects of critical reporting and those billing them hundreds of dollars an hour in an attempt to make their client's fantasies a briefly viable reality.