Legal Malpractice and Unforeseen Internet Complications
Legal malpractice has become much more complicated by virtue of the Internet in a way that many of us have not yet experienced. My office is handling an important matter with significant Internet complications.
Peter Vicinio was one of two siblings of Philomena Vicinio. Years before her death, Philomena determined to gift all of her worldly assets to Peter to the exclusion of his sister, Roseann Pakay.
Years after the gifting transactions took place and after Philomena had deceased, Roseann instituted an action to declare the transfers to Peter to be null and void on the ground of undue influence. The theory of undue influence was aided by the presumption that arises when the transferor is in compromised health and the transferee occupies a close and confidential relationship with the tranferor.
Peter Vicinio defended against the claims of his sister but unfortunately lost. As a result, the transfers of real property and personal property were ordered to be returned to Philomena’s estate.
Peter engaged this firm to look into the possibility that the outcome of the litigation brought by Roseann was contributed to by the malpractice of his attorneys. Review of the trial transcript, as well as evidence that was presented without objection and evidence that was not presented but should have been presented, suggests that a viable malpractice claim existed against the defense attorneys. In addition, before and after the realty was transferred to Peter Vicinio, he had contributed a substantial number of hours and value to the improvement of his mother’s house. Despite this, Peter Vicinio’s attorneys never filed a counterclaim asking for compensation for his services on a quantum merit basis.
Peter Vicinio works in a very trust-sensitive position. Unfortunately, a law firm became aware of the decision in which Peter was found to have unduly influenced his mother and it posted Internet articles telling the world that Peter Vicinio had unduly influenced his mother to make the gifts which were ordered returned to the estate. This article was given a high priority rating and appears in any Google-type search of Peter Vicinio’s name, within the top three or four responding articles.
The law in New Jersey and elsewhere is that the webmaster who posts the article has no liability even if the article is false and defamatory. Further, since the article is literally true, it would be difficult if not impossible to compel the law firm to withdraw the article.
Lastly, since Peter Vicinio has not yet suffered any damages as a result of the article, the mere fact that the article exists does not present an element of compensatory damages at this time. Nevertheless, Peter Vicinio knows that if he ever wants to leave his employment or if he is terminated from his employment and seeks employment elsewhere, any future employer will Google his name as part of an initial investigation. Since the articles telling the world that Peter Vicinio had unduly and illegally influenced his mother to make gifts to him to the exclusion of his sister will likely come up, he probably will not be hired.
The Peter Vicinio case is still pending and the outcome will not be known for some time. Nevertheless, Peter Vicinio’s dilemma with Internet posting is a real problem. Even if Peter Vicinio is successful in establishing that the law firm that formerly represented him had committed malpractice and that malpractice contributed to the finding of undue influence, there is no way to compel the eradication of the posting of the article.
Internet postings can be a real dilemma given the absolute immunity of the web host. The most expeditious method around such a situation would be to join the web host and the author in one litigation and secure an order compelling the author and the web host to delete or modify the article. In this case, however, the posting is true and there is no legal basis to secure its removal, even if there is a subsequent finding that the original decision that Peter Vicinio unduly influenced his mother was the result of legal malpractice.
This is a difficult and frustrating case because the legal malpractice remedy will not cure the true problem created by universally available Internet postings – whether those postings are true or false.