John Bear shamelessly seeks advice on whether to consider a libel suit.

Since my lawyer is up to $400 an hour, I shall shamelessly ask for advice from the lawyers who contribute to this forum -- not a detailed opinion, of course, but a quick thought would be appreciated.

The situation:

The attorney representing a less-than-wonderful school has written to a state official as follows:

"Before I go to the final point, allow me as a fellow attorney and someone who respects you, to suggest that you not to [sic] allow your name to be linked or associated with John Bear...who hypocritically turned himself into the guru of distance higher education [and] is serving a 20-year sentence in jail for fraud connected with the most notorious diploma mill in the recent history of higher education in the United States, namely Columbia State University...and for misrepresentation of a respected university in Scotland... Under the cover of these "Guides," [he] sold degrees for amounts between $200 and $20,000 [and continues] to fraudulently extort funds from the innocent by sending the following audacious e-mail to their 'graduates',,, 'Please order your Bear's Guide today thru [email protected]. Your donation will be used to get Dr. John Bear out of prison."

The state official tells me that such correspondence is 'absolutely public' under the state's public records law. Anyone can read this letter.

Of course a retraction would be nice, but beyond that, I am wondering if there could be grounds for a libel suit here. And yes, I've already located the addresses for the ethics committees of the ABA and the relevant state bar.

Thanks.

John Bear
[email protected]

 

Dr. Bear,

While we wait for an attorney, let me offer my encouragement to sue the pants off this "less-than-wonderful" (to use your popular term) person. As I understand it, libel requires both malicious intent (trying deliberately to do harm) and knowledge that the statement is false (which he obviously does). It appears that both are present here.

We have some sharp people on this forum with JDs. I look forward to their wisdom and expertise in this case.

Best of luck!!

Tony Pina
Faculty, Cal State U. San Bernardino
(instructional technology, not law)

 

Two questions I have learned to ask myself when dealing with these types:

1. What is my desired outcome of the action I'm contemplating? (Normally, that means whether or not to respond and in what manner.)

2. Will my desired action achieve it? If not, I don't do it. That's why I don't engage the trolls anymore (except a few "trollish" folks that mis-behave here, where it is somewhat moderated.)

Just a thought....

 

Get him!

Dr. Bear,

I certainly do not see eye-to-eye with you on many things but I would first have to say that your asking for some free advice is not shameless since so many benefit from your free advice in this forum so it may be a sort of exchange of already provided favors.

Second, economic theory shows that you do not own your reputation; a reputation is opinions other have of you of which you cannot control...BUT...in this case your name is basically your livelihood so what he is doing is trying to hurt your livelihood. This is a form of indirect coercion and obviously intended to cause you serious financial harm. If you do nothing it might cost you greatly; cause harm to your livelihood. If you do sue it will cost you also but perhaps much less in the long-run.

Third, there is the principle portion too. People who do this sort of thing when it is all untrue are nothing more that social parasites and if they are allowed to get away with it will just continue to do it to others.

Perhaps a market solution might also be appropriate in addition to suing this parasite. suggestion: distribute a petition or letter stating how much your books and other advice has helped many many people to better their lives and send it to these people.

my $0.02

 

I suggest that you consider these points:

-Can you show actual damage? In other words, has your reputation really been affected and if so has there been any economic harm to you?


-If so, is there anything to recover or is the defendant "judgment proof"? I will warn you that dishonest people have ways of appearing judgment proof to the Courts even when they have assets.

-Where would you sue? Mounting a libel suit in a state far from home is a miseable experience, but if that's where the defendant IS, you may end up doing exactly that.

FINALLY, can you direct litigation easily from your cell in...where was it again? (grin)

 

Oh, here is another thought. You might explore seeking help from the state office. It is true that in general public records may not be expunged, but PUBLISHING libel is itself libel and I would think that the agency lawyers might look for a way to avoid being sued themselves. In any event, you can certainly require the agency to include YOUR OWN correspondence in the same place.

 

No JD, just a thought......

from personal experience.

Nos is right!

Personally, I would NOT give this guy the satisfaction of having subpoena power over me by suing him. I WOULD go balls to wall with the Bar Assns. in his State, and County. And with the State agency in possession of his letter which is now public record.

 

While this letter may or may not satisfy the legal definition of defamation (I'm not an attorney), spreading lies about you being an imprisoned felon is pretty clearly unethical and would probably be of interest to the attorney's state bar association.

That's assuming that the attorney even exists. Both the language and content of this letter sound suspiciously like the people who are keeping AED suppressed. If that's so, whatever name he used in the letter is probably false and most likely he's not on any state's bar roster.

The identity of the school that he's representing might be interesting as well. It may or may not be an indication of who is behind the AED attacks. That's probably more likely on the off-chance this turns out to be a real attorney with a real client.

 

If this was a forgery then perhaps the authorities could be made interested? I believe that pretending to be an attorney is against the law.

 

Generally communication between litigants pertaining to litigation is absolutely privileged, even when no litigation actually is pending or ultimately takes place. Absolute privilege means that even if the guy knew it was false and said it anyway, it's not actionable. The policy of the law is to encourage frank communication between litigants. The context here suggests the communication was related to some planned or threatened legal action, so you probably are SOL on this one.

 

That attorney appears to be a moron. It's not Enrique is it?

 

Probably not. While Enrique demonstrated a ham-handed--and incompetent--style while suing Steve, he didn't engage in these behaviors.

If the identity of the author is not determined, I'd hazard a guess that it is one of the a.e.d. clowns pretending to be an attorney. The MO fits.

If the person is identified(able), and is an attorney, then complaining to the relevant bar association(s) seems prudent. A lawsuit does not--unless there are damages, sufficient resources attainable, and a clear path to victory is assured. Otherwise, you just get dirtied up dealing with people like this. They're scum.

 

Thank you all for the comments. Very much appreciated, perhaps especially from the folks who disagree with me on politics or the Redsox or other important stuff.

The attorney making these comments is very real. His name is Richard K. Minatoya, of Lihue, Kauai, Hawaii.

The "what do I want from this" questions are really the key. In a completely rationale world, I guess I'd want a sincere apology, and an assurance he wouldn't do this kind of thing again to me or anyone else. Money or a punch in the snoot are less relevant.

So I'll probably start with a polite letter, standing by with the addresses of the state and national bar association ethics/professional responsibility offices if necessary.

But I'm also waiting for the opinion from my lawyer friend in Hawaii. If he's willing to plunge in on a contingency basis, that's something else entirely.

I do like the Hawaii term for this kind of behavior: "He make stink."

 

I doubt that filing an ethical complaint will get very far. The attorney would probably just say that he had no reason to believe that the allegations are false. If pressed as to how he got this “information” he’d likely plead attorney-client privilege and refuse to comment further.

With respect to a defamation action, you are likely to be considered a “public figure” in the area of alternative education requiring evidence of malice on the part of the attorney.

 

David Boyd's thoughts echo my own.

Dr. Bear is probably a "public figure" at least in this context. Libel is never easy to prove and being a public figure makes it much harder.

I do think, however, that it might be worth asking the public entity to include a copy of your rebuttal in its file with the letter.

 

Call 60 minutes, as it seems you really don't want the money, but more reveal a fraud..... and this is not a sarcastic remark, but a real recommendation.

 

OTOH, I could be smeared all day without suffering any material loss while with Dr. Bear, his reputation amounts to his livelihood. Is that immaterial?

 

Your question goes to damages once liability has been established. The problem is establishing liability.

 

Yes, and if one can't show loss, one can end up with nominal damages, say $10, for all the aggravation and inconvenience.

A libel suit is better than a needle in the eye, but not by much.

 

It would be worse in my mind to lose the case. One critical point you must show is not only the libel, but damages were incurred due to the libel. It is very easy to prove that the libel occured (copy of the letter), but if you can't show you sustained a loss because of it, you will lose, and maybe fan the fire.