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Slander per se Case Analysis

The decision effectively removes from the list of defamation that constitutes slander per se, defamation “affecting the plaintiff in his business, trade, profession, or office.”

The classic examples of a statement that fits into this category is stating that a lawyer “is ignorant and unqualified to practice law,” a merchant is “insolvent,” or that a merchant is “insane.” Restatement (Second) of Torts 573 cmt. C, illus. 1-6.

The majority cites these examples as a correct statement of the law, but it is difficult to see how its decision can be reconciled with them.

In the case at bar, the crux of the alleged slander is that Freer (an investment counselor) had never managed anyone’s portfolio while employed at M&I, but was only a sales agent.

Suppose, however, to use an example close to home, that a law firm said that an attorney who was formerly with the firm was not an attorney at all, but was a paralegal or a secretary. This would be extremely close to the slander alleged in the case at bar.

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It would also be even more defamatory than to say that an attorney “is ignorant and unqualified to practice law.” A corporation must be represented by a licensed attorney in order to even make a court appearance, and an unqualified one would still be better than none at all.

The reasoning of the majority, however, would not permit an action for slander per se.

The court in the case at bar reasoned, “Simply put, many business people undoubtedly fall within the ambit of employment encompassed by Matchette’s alleged statements to Sherman about Freer and lead proud and productive lives. See Anderson, 667 N.E.2d at 1301-1302 (words that could be non-defamatory if applied to others are not defamatory per se).”

However, people who are not attorneys also lead proud and productive lives. Under the majority’s reasoning, merely because it is not defamatory to say that a layman is not an attorney, it is therefore not slander per se to assert that an attorney is not an attorney.

– David Ziemer

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David Ziemer can be reached by email.

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