Here’s a motion that two of Mr. Partington’s counsel filed today seeking to withdraw from the case.  It drops the bombshell that Charlie Gittins (whose name the motion repeatedly misspells) is joining Mr. Partington’s legal team.

I’ll see you at the hearing on the 29th, Charlie.

7 Responses to “Charlie Gittins to join Partington’s legal team”

  1. Dew_Process says:

    What are they going to do if he’s not admitted by the hearing date, punt?  But, I’m glad that someone with military justice expertise is on board.

  2. Socrates says:

    Much of this case is about Partington’s loss of reputation due to disbarment.  Essentially, navy officials are calling Partington a “liar.”  So besides his due process and equal protection arguments, tort law principles will likely establish some of the parameters for Partington’s disbarment challenge. This is because “loss of reputation” is a longstanding and well-settled general damage claim to compensate a claimant for non-monetary harm.  Moreover, loss of reputation is a particularly acute issue for lawyers, for example, according to Spevack v. Klein, 385 U.S. 511 (1967): “The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege.”

    The claim of “loss of reputation” is a harm which customarily arises in defamatory falsehood suits, with other harms including impairment of standing in the community, personal humiliation, and mental anguish and suffering.  Here, Partington will likely argue that CAPT Blazewick, Navy JAG, et al, issued libelous (defamatory) statements about him, and committed “verbal acts” in the guise of official governmental actions, by ratifying those libelous (defamatory) statements as a predicate for its actions.

    Here is where it gets interesting.  Government officials are not afforded the special protections granted to newspapers or broadcasters, either of which may escape liability for publishing defamatory falsehoods if lacking “actual malice,” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

    This means that the principles set-forth in the Restatement (Second) of Torts, which allows for a per se category of slander, may apply to Partington’s case.  For a characterization of a person to warrant a per se classification, it should, without equivocation, expose the plaintiff to public hatred or contempt.  Per se slander occurs in those instances in which the defamatory remark is apparent from the publication itself, without reference to extrinsic facts.  Besides being called a “liar,” per se slander also includes this specific category: improper conduct of a lawful business (the closest analogy to improper/unethical practice of law).  See Restatement (Second) of Torts Sections 571-574 (1977); Gertz v. Welch, 418 U.S. 323 (1974), (White, J., dissenting). 

    The legal significance of Partington being falsely accused of belonging in a category of persons considered deserving of social approbation, i.e., thief, murderer, prostitute – or in this case, “liar,” “unethical attorney,” means that the court may presume damages, without offers of proof.

    The advantage for Partington in claiming slander per se is that his damages would be presumed if the statement is so categorized.  This means that the traditional damage for “loss of reputation” need not be proved, because it is so obvious.  This presumption is desirable because injuries such as loss of reputation can be difficult to prove, since Partington’s clients in the military, in Hawaii, and elsewhere, may be unavailable or reluctant to testify that the publication by Navy officials’ affected their relationship with Partington.  In addition, the words may affect the recipients’ view of their relationship with Partington in subtle ways of which the recipient is not necessarily aware. See Gertz, (White, J., dissenting).

    By way of analogy, some jurisdictions have permitted recovery of damages for “loss of reputation” in legal malpractice cases.  For example, in Kirtland and Packard v. The Superior Court of Los Angeles County, 59 Cal. App. 3d 140 (1976), a physician recovered for “injury to his reputation” as a result of publicity over the physician’s loss of a medical malpractice action.  The Maine Supreme Court also upheld an award of damages in a negligence-based legal malpractice case that included damages for “loss of reputation.”  Burton v. Merrill, 612 A.2d 862, 865-66 (Me. 1992).  These suits were consistent with per se slander, in asserting the improper conduct of a lawful business.  And this is what Navy officials accuse Partington of.

    Recently, the Massachusetts Supreme Judicial Court, reasoned that slander per se applied to impugning a lawyer’s character, meaning that the lawyer did not have to prove concrete damages – it could be assumed.  And this holding was in the context of a HIGHER standard applied to a legal publication (protected under New York Times).  See Millenium Equity Holdings LLC and others v. Mahlowitz, (Mass, May 3, 2010):  

    “We are in full accord with the judge’s observation that “an attorney is not much more than his reputation and that once sullied it is very difficult … to undo the tarnish.” The judge found that several pieces published about the lawsuit in Massachusetts Lawyers Weekly, “damaged Mr. Mahlowitz, both in the esteem with which he is held in the community of divorce lawyers and judges in the Probate Court.” In particular, Mahlowitz testified that since the appearance of the Massachusetts Lawyers Weekly items, he had not received any appointments from Probate and Family Court judges in Middlesex County, who had often appointed him in the past. This evidence alone is compelling: we cannot imagine a more damaging result for an attorney than the loss of his credibility on the part of judges before whom he routinely must appear.”

    “The defendants nevertheless assert that Mahlowitz cannot recover for harm to reputation because he did not prove “real business loss” or other pecuniary harm resulting from damage to his reputation. We do not discern authority for such a requirement in this context, nor have the defendants directed us to any relevant source. In the context of defamation, we have explained that actual injury is “not limited to out-of-pocket loss” but instead includes “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.”…Here, Mahlowitz can recover for intangible harm to his reputation separate from and in addition to any loss of business or other pecuniary harm he may have suffered.”

    Contrary to appearances – I am not necessarily taking Partington’s side in this dispute.  I am mostly troubled by the shoddy procedures and lack of fairness of this process.  There is a Navy joke that duct tape can hold anything together, and I guess that applies to disbarment procedures, too. 

    Good luck, Charlie.  Perhaps some good can come out of this sad affair. 
     

  3. Just Sayin' says:

    It’s a shame that Feres bars military suits.  Otherwise, on these theories, I suspect if Mr. Gittins did some digging, he could have a class action on his suit.
    The Navy’s professional responsibility complaint process is a joke, and is rife with malice.

  4. stewie says:

    So Socrates, my not at all being a Tort attorney, are you saying that truth is not a defense to slander “per se?”

  5. Socrates says:

    Stewie,  thank you – you are absolutely right.  I forgot to state the obvious: If Partington is indeed a “liar” and he is “improperly conducting of a lawful business” (i.e., practicing unethical law), then of course the Government (and its officials acting in any personal capacity, if so viewed) wins.

    Partington could argue, also, that the Government has essentially commited the act upon itself.  We have a unitary executive – appellate defense is part of that executive, even within the bounds of our adversarial system – with oversight responsibilities.  These allegedly “clear” and “repeated” lies should have been discovered by the Government (big “G”).  The Government will argue that disbarment IS that supervision.  Partington will argue that this purported “supervision” occured too late in the process…and was not so “clear” and “repeated” that anybody else in the government chain noticed.  (For example, I don’t know, but did the Appellate Government brief raise the ethical flag?)  So nobody notices, except the cranky court, sick-and-tired and overworked by a then backlog of cases, and they go nuclear on this attorney.  Very arguably unfair.  A stern footnote and warning MAY have been more appropriate.

    By the way, recipricol disbarment is so universally known, and such a foreseeable consequence, that the Navy/Federal Government, cannot wash its hands of the affect the disbarment had on Partington in Hawaii.  Although the Government will try to draw bold borders around its own jurisdiction and procedures and claim Hawaii is outside of its concern or responsibility.     

  6. Socrates says:

    To reiterate what I argue above, the per se slander issue goes to damages (meaning that “loss of reputation” does not need to be proved by evidentiary findings).  The duty/breach issue is analytically separate.

  7. k fischer says:

    I had a vindictive PR investigation and State Bar Complaint filed against me by the SJA and TC, respectively, after my client was fully acquitted of no less than 5 charges.  The complaints, while curiously similar, had a couple of untruths and ommissions of material fact, which I believed could have been slander.  The problem is that bar complaints under my state’s laws and the jurisdiction of the post where I was stationed were per se an exception to slander.  You cannot sue for slander due to false statements made in a bar complaint in some jurisdictions like Florida and Georgia.