Scathing law firm reviews from non-clients aren’t libelous - 7th Circuit

REUTERS/Chip East

(Reuters) - Good news for critics of lawyers and law firms: Thanks to a ruling on Friday from the 7th U.S. Circuit Court of Appeals, you can post scathing Facebook, Google and Yelp reviews and one-star ratings for law firms in Illinois, Indiana or Wisconsin, even if you’ve never actually been a client or had other business dealings with the firm, without worrying about libel suits.

In The Law Offices of David Freydin v. Chamara, the 7th Circuit held that four women who were not clients of David Freydin were expressing non-actionable opinions when they called him, among other things, “an embarrassment and a disgrace to the U.S. judicial system,” “not professional” and “biased and unprofessional.” The appeals court rejected Freydin’s contention that the allegedly fraudulent reviews contained an implied falsehood because none of the defendants had a professional relationship with him.

“The point is not whether the individual commentator had a direct consumer relationship with the business that she reviewed,” wrote Judge David Hamilton for the unanimous appellate panel, which also included Judges Michael Kanne and Amy St. Eve. “Rather, we ask if a reader could understand whether the reviewer was expressing opinions or facts. The comments in this case fall clearly on the side of opinion.”

You are doubtless wondering why the defendants, along with 10 John Does who also posted anonymous negative reviews of Freydin, went to the trouble of mounting an online campaign against a lawyer who did not represent them and whom they did not know personally. The reason, according to the defendants' 7th Circuit brief, is that they were “outraged” by two Facebook posts from Freydin in September 2017.

In the first post to his personal Facebook page, according to the 7th Circuit, Freydin said, “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!”

Then, in response to criticism of the first Facebook post Freydin, a bankruptcy lawyer, posted a follow-up: “My business with Ukrainians will be done when they stop declaring bankruptcies. If this offends your national pride, I suggest you look for underlying causes of why 9 out of 10 cleaning ladies we've had were Ukrainian and 9 out of 10 of my law school professors were not. Until then, if you don't have a recommendation for a cleaning lady, feel free to take your comments somewhere else.”

The 7th Circuit called Freydin’s initial Facebook post “odd and offensive” in Friday’s opinion. Freydin’s counsel, Randall Edgar of Freydin's law firm, described the posts as a “joke” in briefs at the 7th Circuit. Neither Edgar nor Freydin responded to my multiple emails and phone messages.

Freydin’s comments did not go unnoticed by the Ukrainian-American community. (The lawyer had previously advertised that he provided “highly-professional legal services in the United States and Ukraine.”) Critics posted one-star ratings and harsh comments about him and his law firm on his law firm’s Facebook, Google and Yelp sites.

Many of the reviews were quite brief, calling Freydin biased and unprofessional. One of the critics Freydin ultimately sued did no more than post a one-star rating of his firm.

In the most extensive negative review, a woman named Victoria Chamara said Freydin “has no right to practice law." Chamara added, “His unethical and derogatory comments, which target one particular nation–Ukrainians, show who he really is.”

Freydin's lawsuit argued that the reviews and one-star ratings of his law firm were not simply opinions but libelous misstatements about his professional services. U.S. District Judge Harry Leinenweber of Chicago ruled in 2018 that the comments were per se defamatory under Illinois law because they alleged that Freydin lacked professional integrity. But Leinenweber found that the posts were expressions of opinion. To be libelous under Illinois law, an assertion must have a precise meaning and be verifiably false. Comments calling Freydin unethical or bigoted, the trial judge said, did not meet that standard.

On appeal, Freydin insisted that the reviews were actionable. “There is no constitutional right, defense or protection that allows an individual to disseminate fake internet reviews on products or services they never received,” he told the 7th Circuit. “Specifically, the defendants' comments indicate that Freydin is not a legitimate lawyer or a member of the legal profession which is false.”

The 7th Circuit had little trouble concluding that Freydin’s reviewers were expressing opinions in response to “Freydin's insults to Ukrainians.” (Interestingly, Freydin’s libel complaint did not include his Facebook posts, but the 7th Circuit quoted them in their entirety.) Comments about Freydin’s professionalism or customer service on websites that invite unfiltered reviews are a paradigm of unverifiable opinion, the 7th Circuit said.

The appeals court did pause at Chamara’s assertion that Freydin was “unethical” and had “no right to practice law.” In some contexts, the 7th Circuit said, those statements could be deemed false, since Freydin is a licensed lawyer. But here, the entire context of Chamara’s post “is best understood as an expression of Chamara's opinions about Freydin's values and opinions, not as a claim that he was practicing law without a license.”

Defense counsel Daliah Saper of the Saper Law Offices told me the decision appears to be the first time the 7th Circuit has ruled on whether non-customers can be sued for comments about businesses whose services they have not used. Saper, who said she took the case at a much-reduced fee, said Freydin was responsible for the posts that led to backlash of negative reviews.

“You can’t claim you have a right to make ‘odd and offensive’ comments, then sue for libel when people use the same forum to respond,” Saper said.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.