Lansing attorney’s libel action an unethical SLAPP suit?

Matthew Garrett Davis
Witte Law Offices119 E Kalamazoo St.
Lansing, MI 48933
Phone: (517) 281-9374
Fax: (517) 485-0187foster5701@hotmail.com

Mr. Davis,

Please accept this e-mail as an offer to reply to criticisms leveled against you as a result of the complaint you filed on behalf James Carabelli against the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahum. As I’m sure you knew it would, the litigation you filed has generated a fair share of publicity.

On September 17, 2008, Rachel Breitman reported in The AmLaw Daily that the Obama campaign filed class action litigation on behalf of "three county residents whose homes are undergoing foreclosure" against the Macomb County Republican Party. Ms. Breitman also reported that: response to this class action you:

Matthew Davis of Witte Law Offices in Lansing responded to the Obama suit Wednesday by releasing a letter addressed to the Center for Independent Media on behalf of [Macomb County Republican Party Chairman James] Carabelli and the state party threatening a countersuit if the Messenger’s story is not retracted within seven days.

"Mr. Carabelli has said that the quote attributed to him was fabricated by the reporter who interviewed him," Bill Nowling, communications director for the Michigan Republican Party, told The Am Law Daily. "This is a page right out of the Democrats’ playbook of tricks."

But the Center for Independent Media was nonplussed by the threatened libel action, saying that this was only a tactic to distract from the Obama campaign’s claim.

"We still have received no letter from the Michigan Party Republicans at this point, but we stand by our story," said David Bennahum, the center’s chief executive officer. The publication is represented by John Pomeranz, a partner at Harmon, Curran, Spielberg & Eisenberg in Washington. "No threatened suit can change the facts." [Emphasis supplied.]

Because the Center for Independent Media did not retract the story, you followed through with the intentions stated in your demand letter and filed Mr. Carabelli’s lawsuit claiming both negligent and malicious defamation. Kate Klonick, Who’s Paying the Lawyer for the Michigan GOP Official?, TPMMuckraker, October 3, 2008.

In reviewing the news of this matter, Marcy Wheeler at emptywheel alleges the litigation you filed is a SLAPP* suit:

By all appearances (particularly given the confidence MM has in their story), this is a SLAPP suit designed to either cow MM, or the larger CIM organization, which has outlets in key swing states: Minnesota, Colorado, Iowa, New Mexico, and Washington (and employes [sic] Spencer Ackerman in their DC Independent site).

According to Professors George W. Pring and Penelope Canan of the University of Denver, SLAPP suits generally have four (4) criteria:

"[SLAPPs] (1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims), (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance."

Under the circumstances as I understand them, I tend to agree with Ms. Wheeler. Please note, however, that I’ve been unable to find a copy of the complaint online, including at the Macomb County Clerk website. Accordingly, I haven’t had a chance to review the specific allegations contained in the complaint. With that caveat, however, it does appear that the litigation you filed on behalf of Mr. Carabelli is, in fact, a SLAPP suit:

  1. The subject of the specific reporting by Ms. Melzer is the stated intentions of the Macomb County Republican Party to challenge any Macomb County voter whose home is in foreclosure and to influence the Macomb County Supervisor of Elections into accepting these challenges as legitimate; s/counts any challenge(s) to any Macomb County voter whose home is in foreclosure; – as well as the Michigan Messenger, generally
  2. The reporting has resulted in civil litigation;
  3. The litigation is filed against non-governmental individuals and groups: the Center for Independent Media, the Michigan Messenger, Eartha J. Melzer, Jefferson Morley and David S. Bennahu; and
  4. The subject of the litigation – the voting rights of Macomb County residents – is clearly a substantive issue of some public interest or social significance.

First, I would appreciate a copy of your demand letter to the Center for Independent Media, any reply you received to that letter and a copy of the complaint so I can better understand and evaluate this matter.

Second, the accusation that this lawsuit is a SLAPP suit necessarily infers that you are in violation of Rule 3.1, Meritorious Claims and Contentions, Michigan Rules of Professional Conduct, which states that:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. A lawyer may offer a good-faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may so defend the proceeding as to require that every element of the case be established. [Emphasis supplied.]

Comments to Rule 3.1 state, in part, that

The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person. Likewise, the action is frivolous if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law. [Emphasis supplied.]

Did you consider Rule 3.1 and the comments before filing this suit? If so, how did you conclude that the litigation was not filed primarily for the purpose of delay? What is the reason, if not for the primary benefit of harassing the defendants, that you advised your client to litigate against media publications, reporters and other individuals instead of intervening in the Obama campaign class action lawsuit when both lawsuits are based on the same statements allegedly made by Mr. Carabelli? What actionable damages has Mr. Carabelli suffered as a result of the publication of Ms. Melzer’s article. When was the last time you read Rule 3.1 and the comments to the rule?

Third, in determining the standard to apply in determining whether a lawsuit is frivolous or not pursuant to MRPC 3.1, Michigan Ethics Opinion R-009 (October 26, 1990) considered, inter alia, the Michigan statute which taxes costs for frivolous claims, MCR 2.625(A)(2), which defines frivolous:

"(a) ‘Frivolous’ means that at least 1 of the following conditions is met:

"(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarass, or injure the prevailing party.

"(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.

"(iii) The party’s legal position was devoid of arguable legal merit." [Emphasis supplied.]

Michigan Ethics Opinion R-009 further states

Two standards have developed over the years regarding frivolous claims: one is a subjective test which asks whether this lawyer knew that the client’s case was without merit; and, the other is an objective test which asks whether a reasonable lawyer would have known that the case was without merit.

Although MRPC 3.1 does not specifically identify the nature of the investigation the lawyer should undertake or which of the two tests it adopts, this Committee has held in previous opinions that the objective test of a "disinterested lawyer" should be used.

* * *

The objective standard requires the lawyer to inquire into all facts presented by the client which are, for instance, contradicted by readily available evidence. Refutable or contradictory evidence must be investigated by the lawyer to ascertain the validity of the client’s claim.

Were you aware of Michigan Ethics Opinion R-009 and the comments before filing this suit? If not, why didn’t you conduct any research into your ethical obligations regarding this matter? If you were aware of the opinion, and considering that there is evidence contradictory to your client’s claims, what investigation of these claims did you conduct prior to filing this suit, as required by Michigan Ethics Opinion R-009?

Fourth, have you represented any other plaintiff or defendant in any other litigation or matter in which you have been accused of engaging in SLAPP tactics?

Thank you for your attention to this matter. I look forward to your response.

E.M./The Grievance Project

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