Confession time: I've always been a little nervous at the dentist. X-rays pointed at my head? Poking my mouth with sharp objects? Using rotating buffers with unidentifiable grape-flavored goo on my teeth? Prone in a awkward chair? Not if I can help it. My dentist is a distant cousin who I've seen my whole life and I still feel like he or his staff might go all Laurence-Olivier-versus-Dustin-Hoffman on me at any moment.
So you can imagine that I'd never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?
The dentist in question is Dr. William T. Coppola at Northeastern Children's Dentistry in Texas.
A woman who uses the Yelp username "Jen B" took her daughter to see Dr. Coppola. Afterwards, dissatisfied with the experience, she left this review on Yelp:
I would never recommend this place to anyone. It is nice and clean. But the people are very pushy. I feel like they are doing more dental work than required. I went with a referral from a general dentist and they only spoke down to me about him, my child and came up with about 7 other teeth that had "issues" etc. They are seriously just out there for the money. Funny how when I went to a different dentist for another opinion they sided with MY dentist!!! DO NOT GO HERE.
Dr. Coppola did not like this review. He hired Isabel de la Riva of de la Riva & Associates in San Antonio, Texas. Ms. de la Riva sent a threatening letter — a letter notable for its thuggish bogosity, even by my jaded standards. In the letter Ms. de la Riva demanded that Jen B. take down her Yelp review.
Your willfully false and defamatory comments including that my client is "just out there for the money" are false. Our initial investigation shows that your review was written PRIOR to even seeing another dentist for a second opinion; and that when you did receive that second opinion at a later date, the diagnosis you received was the same or extremely similar to the one you received from Dr. Coppola. Please note that your post to encourage individuals on the internet to "not go here" is actionable. There are numerous lawsuits regarding these types of issues, and the Courts have found that in actions where misinformation is provided, there is serious financial exposure for each and every one of the defamatory comments you have made. If our investigation shows that your actions have resulted in damages to our client and its several locations in Texas, we will pursue legal action against you.
Ms. de la Riva did not explain how, consistent with the right to medical privacy, she could have learned what other dentists told Jen B. As you will see later, that representation is questionable.
But Ms. de la Riva was not done. She went on to threaten Jen B. with criminal charges:
You are hereby on notice that if you fail to retract your libelous post on yelp.com that we will recommend to our client that he pursue legal action against you. Dr. Coppola has already consulted with the authorities regarding criminal charges and the Guadalupe District Attorney's Office stated that placing intentional false information on the internet can result in a felony charge of internet business defamation and libel. Although we have encouraged our client to pursue this avenue, he has not done so, mostly in deference to the military service of your husband. Dr. Coppola is a staunch supporter of the military and offers military discounts to his patients, such as yourself. However, he understands that if this matter is not rectified, that he must pursue all options at his disposal to protect his reputation of 33 years of exemplary service to his patients.
I don't know whether Dr. Coppola did, in fact, consult with the DA's office, or what Ms. de la Riva has told him about the likelihood of criminal defamation charges. If Ms. de la Riva told Dr. Coppola that charges were likely — if she sincerely believes that her threat to Jen B. has teeth — then she's a fool. Texas used to have a criminal libel law, but seems to have repealed it as of 1974.1 I do not find a Texas statute criminalizing "internet business defamation and libel." Texas, like some other states, has industry-specific criminal libel statutes that special interests have obtained through lobbying, so in Texas it can be a crime to libel financial associations.2 I am informed and believe that dentists are not classified as financial associations. Even if Texas retained such a statute, criminal libel prosecutions have become extraordinarily rare. Even if such prosecutions were still common, no prosecutor is going to charge someone based on a Yelp review.
Ms. de la Riva was, therefore, entirely full of shit to suggest that Jen B. faced criminal charges. Was she ignorantly full of shit, or deceitfully full of shit? That's a question for the philosophers; neither option reflects well on her as a lawyer.
Ms. de la Riva's contemptible threat, sent on behalf of Dr. Coppola, was initially "successful." Jen B. reacted the way many non-lawyers would — she took the Yelp post down out of fear. She was intimidated.
Leif Olson brought the heat. I was looking for someone who could send a letter backing de la Riva and Dr. Coppola off, and holy shit, did Leif ever do that. He sent one of the most thorough, persuasive, and crushing refutations of a bogus legal threat I have ever seen. Enjoy it here in all its hyperlinked glory. Leif eviscerates de la Riva's suggestion that Jen B.'s Yelp review was false or actionable, lays out the pertinent authority showing that her opinion was utterly protected, and sets forth the world of hurt de la Riva and Dr. Coppola face under Texas' anti-SLAPP statute if they pursue Jen B.
Leif also mentions — as he ought — a relevant provision of the Texas Disciplinary Rules of Professional Conduct:
Rule 4.04 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
(b) A lawyer shall not present, participate in presenting, or threaten to present:
(1) criminal or disciplinary charges solely to gain an advantage in a civil matter; or
(2) civil, criminal or disciplinary charges against a complainant, a witness, or a potential witness in a bar disciplinary proceeding solely to prevent participation by the complainant, witness or potential witness therein.
No doubt Ms. de la Riva would argue that her bumptious and bogus threat of criminal prosecution wasn't "solely" to gain an advantage in a civil matter. Good luck with that argument.
Leif ends with a crowning moment of awesome:
Dr. Coppola's behavior isn't that of a man with an "impeccable record" or an "excellent reputation." It is the behavior of a prideful and hubristic man. It is, as you perhaps revealed in the first paragraph of your threat letter, the behavior of a covetous man-a man of envy and jealousy who lashes out at anyone who threatens his hoard.
It is the behavior of a thug. Thugs are not to be rewarded, and Jen B does not surrender to this one.
Leif Olson helped Jen B. pro bono, at her request and mine, because Leif Olson is awesome. He did a bang-up job. If Ms. de la Riva or Dr. Coppola raise their heads again, I'm sure he will continue to do an excellent job, and I'm confident I will have no problems finding other Texas lawyers to step up to help Jen B. and Leif.
America has a First Amendment; Texas has a very good anti-SLAPP statute. But for all of that free speech is vulnerable to frivolous and malicious legal threats like this one. Legally speaking, there are defenses; practically speaking, in a system in which a legal defense is expensive and uncertain, freedom depends on the willingness of people like Leif Olson to step up and give pro bono help to people like Jen B. We need more lawyers like Leif Olson, and more non-lawyers willing to back them up. Will you be one?
Note: I sought a comment from Ms. de al Riva, but did not receive a response.
- The legislative report reflecting the re-numbering of the Texas Penal Code and the repeal of former section 1275 is here. The case noting its repeal — the last Texas case I could find describing a criminal libel prosecution there — is Shackleford v. State, 516 S.W.2d 180 (Tex. Crim. App. 1974) ("Articles 1269 through 1292, V.A.P.C. (1925), have been repealed in toto by the new Penal Code effective January 1, 1974, Acts 1973, 63rd Legislature, Chapter 399, Section 3, Page 994.") ▲
- It's also a separate civil wrong to libel perishable food. Don't be mean to hamburger meat, because the cattle industry has more money than God. ▲
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017