The plaintiff was hired by Seyfarth in 2011 and terminated shortly thereafter. He sued Seyfarth and one of its partners based upon a memorandum written by the partner that was critical of him. The memorandum stated that plaintiff was acting inappropriately in that he was giving advice before he had been admitted to practice in Illinois, was giving inappropriate advice and was asking the wrong questions.
The plaintiff was later terminated and sued for defamation per se and other torts. The Appellate Court held that the statements were not defamation per se because they were capable of innocent construction. The court explained:
“¶ 29 Ms. Ponder soon discovered that Mr. Antonacci’s experience was not a good fit with the job at Seyfarth. Mr. Antonacci scheduled “separate meetings with clients” when he “knew he had limited time to complete project.” He “missed deadlines” and Ms. Ponder had to ask for an extension. Mr. Antonacci gave her a “revised schedule of what he could do by the deadline date and most of it was after the deadline date.” She had to assign the project to another attorney. Ms. Ponder gave Mr. Antonacci another assignment, and he reached out to her and showed interest. However, she also “found out” that Mr. Antonacci “had reached out to pro bono director, which she assumed was to do more work without her.” With the licensing issue approaching, Mr. Antonacci’s attitude “changed and he appears to act more interested.” Ms. Ponder felt that “his actions have been unsettling and inconsistent with what he portrayed in the interview.” She believed that the future of their working relationship “is highly speculative” and felt thatSeyfarth should not “be going out of our way to make exceptions for him and wants to leave door open for future options.”
¶ 30 Each of these statements was specifically confined to the context of Mr.Antonacci’s working relationship with Ms. Ponder and his fit with Seyfarth, and the audience for the email was limited to several human resources personnel. In this context, we cannot reasonably conclude that Ms. Ponder’s statements accused Mr. Antonacci of actions and misconduct that imputes a general lack of integrity in the performance of his duties as a lawyer or prejudices him. Rather, the more reasonable conclusion is that Ms. Ponder stated her belief that Mr.Antonacci was not a good fit with Seyfarth and did not work well with her. The statements are reasonably capable of an innocent construction and therefore they are not defamatory per se. Green, 234 Ill. 2d at 502-03.”
Comment: I agree with the result of the case, but I question whether the statements in the email are capable of an innocent construction. The memorandum alleges that the plaintiff violated the ethics rules and that his behavior was inappropriate. Even if the statements are not capable of an innocent construction, the Firm should have the right to debate ethics issues internally free of the risk that a court or jury will second guess them. I would have preferred that the case be dismissed on a qualified privilege ground. Such a qualified privilege would not protect a lawyer who wrote that another lawyer stole money from the firm or defrauded a client.