Malpractice Suit over The Source Comments Proceeds

A Manhattan federal magistrate judge ruled that a client may proceed with a legal-malpractice claim against a law firm for failing to bring defamation claims on behalf of the client in a highprofile sexual harassment and discrimination case against hip-hop magazine The Source. Joyce v. Thompson Wigdor & Gilly, 06 civ. 15315.

Kenneth P. Thompson of New York-based Thompson Wigdor & Gilly represented Michelle Joyce and Kimberly Osorio in a 2005 suit filed against The Source. Osorio, the magazine's former editor-in-chief, and Joyce, a former marketing executive, alleged pervasive sexual harassment and a hostile work environment. The suit claimed discrimination, retaliation and wrongful discharge on behalf of both women but defamation only on behalf of Osorio, based on an interview in which The Source co-owner Raymond Scott said she had tried to extort the magazine.

Joyce's claims were dismissed by Southern District of New York Judge Jed S. Rakoff in August 2006. That October, a jury awarded Osorio $8 million, of which $3.5 million was for the defamation claim.

In the malpractice suit Joyce filed against Thompson Wigdor in December 2006, she claims the firm should have brought defamation claims on her behalf as well, based on statements made by The Source defendants in April 2005. At that time, the defendants said in a news release that they 'suspect Ms. Joyce falsified health claims in an effort to attack The Source when she learned that she was going to be terminated.' Scott said in a subsequent interview that Joyce 'didn't even do nothing around here' and 'faked that she was having breast cancer so that we wouldn't fire her.'

In moving to dismiss Joyce's claims, Thompson Wigdor argued that the statements she cited constituted nonactionable opinion. But while Southern District Magistrate Judge Gabriel W. Gorenstein agreed that the statement that Joyce did 'nothing' at The Source was an opinion, he said statements that she faked a medical condition were libelous per se. '[T]he faking of a serious illness to avoid being fired has a precise and definite meaning and it is readily capable of being proven to be true or false,' the magistrate judge wrote. 'Here, an average reader would assume that because The Source was Joyce's employer, it was the entity with the most direct knowledge of whether she had made false claims regarding her health to her employer.'

Similarly, Gorenstein said, because Scott was an executive of Joyce's former employer, he was 'a person that a reader would assume had actual knowledge of whether Joyce had faked breast cancer to avoid being fired.'

The magistrate judge dismissed Joyce's other claims against the law firm for negligence, breach of contract and breach of fiduciary duty as duplicative of the malpractice claim.

Thompson did not return a call seeking comment. The firm's lawyer, David Wilck of Rivkin Radler of Uniondale, NY, declined comment pending a final order on the magistrate judge's recommendation by Southern District Judge Robert L. Carter. Joyce is represented by Bruce Ressler of Ressler & Ressler in New York.

'To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. ' The federal requirement that a plaintiff state facts that 'plausibly' allege a cause of action necessarily extends to the description of the underlying claim that the plaintiff alleges should have been brought. After all, there would be no reason to allow a malpractice action to proceed if there was no plausible claim that the attorney improperly failed to pursue.'

Anthony Lin is a reporter for The New York Law Journal, a sibling publication of Entertainment Law & Finance.

A Manhattan federal magistrate judge ruled that a client may proceed with a legal-malpractice claim against a law firm for failing to bring defamation claims on behalf of the client in a highprofile sexual harassment and discrimination case against hip-hop magazine The Source. Joyce v. Thompson Wigdor & Gilly, 06 civ. 15315.

Kenneth P. Thompson of New York-based Thompson Wigdor & Gilly represented Michelle Joyce and Kimberly Osorio in a 2005 suit filed against The Source. Osorio, the magazine's former editor-in-chief, and Joyce, a former marketing executive, alleged pervasive sexual harassment and a hostile work environment. The suit claimed discrimination, retaliation and wrongful discharge on behalf of both women but defamation only on behalf of Osorio, based on an interview in which The Source co-owner Raymond Scott said she had tried to extort the magazine.

Joyce's claims were dismissed by Southern District of New York Judge Jed S. Rakoff in August 2006. That October, a jury awarded Osorio $8 million, of which $3.5 million was for the defamation claim.

In the malpractice suit Joyce filed against Thompson Wigdor in December 2006, she claims the firm should have brought defamation claims on her behalf as well, based on statements made by The Source defendants in April 2005. At that time, the defendants said in a news release that they 'suspect Ms. Joyce falsified health claims in an effort to attack The Source when she learned that she was going to be terminated.' Scott said in a subsequent interview that Joyce 'didn't even do nothing around here' and 'faked that she was having breast cancer so that we wouldn't fire her.'

In moving to dismiss Joyce's claims, Thompson Wigdor argued that the statements she cited constituted nonactionable opinion. But while Southern District Magistrate Judge Gabriel W. Gorenstein agreed that the statement that Joyce did 'nothing' at The Source was an opinion, he said statements that she faked a medical condition were libelous per se. '[T]he faking of a serious illness to avoid being fired has a precise and definite meaning and it is readily capable of being proven to be true or false,' the magistrate judge wrote. 'Here, an average reader would assume that because The Source was Joyce's employer, it was the entity with the most direct knowledge of whether she had made false claims regarding her health to her employer.'

Similarly, Gorenstein said, because Scott was an executive of Joyce's former employer, he was 'a person that a reader would assume had actual knowledge of whether Joyce had faked breast cancer to avoid being fired.'

The magistrate judge dismissed Joyce's other claims against the law firm for negligence, breach of contract and breach of fiduciary duty as duplicative of the malpractice claim.

Thompson did not return a call seeking comment. The firm's lawyer, David Wilck of Rivkin Radler of Uniondale, NY, declined comment pending a final order on the magistrate judge's recommendation by Southern District Judge Robert L. Carter. Joyce is represented by Bruce Ressler of Ressler & Ressler in New York.

'To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. ' The federal requirement that a plaintiff state facts that 'plausibly' allege a cause of action necessarily extends to the description of the underlying claim that the plaintiff alleges should have been brought. After all, there would be no reason to allow a malpractice action to proceed if there was no plausible claim that the attorney improperly failed to pursue.'

Anthony Lin is a reporter for The New York Law Journal, a sibling publication of Entertainment Law & Finance.