Sure, writing a blog post has the potential to get an attorney in trouble with the disciplinary authorities. But it’s usually going to be because you’ve had the bad judgment to reveal client confidences or engage in unabashed advertising.
However, we shouldn’t underestimate the power of butthurt doctors. After all, the medical profession has produced a spate of lawsuits over Yelp reviews, attempts to contract away free speech rights, and even reflexive suing of legal bloggers. So I guess it should come as no surprise that a doctor – who also happens to be a member of the Michigan Attorney Discipline Board – would file a grievance seeking bar discipline for a lawyer over a post he wrote that was critical of her.
I know, it’s a lengthy post that gets into the arcana of independent medical exams in personal injury cases. But Dr. Rosalind’s Griffin’s complaint is light on specifically what it is about attorney Steve Gursten’s blog that she finds defamatory (and as Ken White at Popehat is so fond of reminding us, lack of specificity in defamation complaints is a hallmark of censorious thuggery). To the extent Dr. Griffin complains about specific phrases, they are things like “notorious IME doctor in Michigan” and that her work consists of “hatchet jobs.”
I’ve said it before, and I’ll say it again: the definition of defamation is NOT “something that someone wrote about me on the internet that I don’t like.” Rather, to be actionable, defamation requires false statements of fact that cause damages. Statements of opinion – like the ones above – are not (absent circumstances not present here) actionable as defamation.
Which could be why Dr. Griffin hasn’t filed a lawsuit within Michigan’s one-year statute of limitations for defamation claims, preferring instead to file a bar grievance that may be heard by a body upon which she has some influence.
Finally, there’s Dr. Griffin’s preferred remedy – that Mr. Gursten be ordered to delete his blog post and remove the link to Google results for Goodwin’s name. That, more than anything else, should tell you this most likely just another thin-skinned attack on speech that the subject doesn’t like.
In a better world, the Michigan disciplinary authorities would have summarily disposed of this claim rather than requiring Gursten to respond. Merely taking claims like this seriously exacts a toll on the exercise of free speech. If Dr. Griffin believes she has an actionable claim, she could have pursued it in court, and, had she won, then sought sanctions against Gursten. 1
Given Dr. Griffin’s membership on the Michigan Attorney Discipline Board, it bears watching how hard Mr. Gursten gets pushed.
Fortunately, it appears he is up to the fight.
- The RPCs that Dr. Griffin complains about – Rule 8.4 – is as subject to the First Amendment as any other attempt to regulate attorney speech. Any attack on the content of that speech would need to meet strict scrutiny, which in this case would require a finding that the speech was actually defamatory. ↩