by impugning his professional conduct, a textbook definition of defamation per se (put the Prosser down.) The problem is, are they privileged in some way or do they merely state opinion rather than fact? Either one would doom plaintiff’s cause of action in defamation.
Justice Saxe explains first that the letters were indeed “published” for they were prepared by a third party employee of defendants. But, as decided by Supreme Court, they were only non-actionable expressions of opinion, rather than fact. One has to look at the whole communication, including its tone and purpose, to make that decision. In the context in which they were sent, these letters from a disgruntled client to his attorney “are better understood as opinion than as fact.”
Failing all else, the letters were also protected by both absolute and qualified privilege. “[A] letter sent by a client to his or her attorney discharging the attorney is absolutely privileged[.]” That privilege could be challenged if the letter is then released to an unrelated third party, but that did not happen here.
Finally, the letter had a qualified privilege as well, “as a communications upon a subject matter in which both parties had an interest.” That privilege can be destroyed, however, by a showing of spite, falsity or ill will.