Blog

It’s Saturday, so I’ll keep this short…..yeah right.

A few days ago, I posted some things about a lawyer named Andrew Ivchenko. The stuff I posted was clearly not intended to place Andrew in a favorable light. As I explained, there is clear evidence this guy (who is a lawyer) engaged in criminal conduct including perjury, fraud, etc.

Harsh as that was, the main point was NOT to criticize Mr. Ivchenko. Yes, his conduct (as an attorney) was atrocious. And the stuff I posted was far from a complete breakdown of all his bad deeds.

While Mr. Ivchenko is certainly a poster child for the worst sorts of attorney conduct, my reason for posting his story was NOT to draw attention to him. It was to demonstrate how deeply broken the State Bar of Arizona is (in my opinion) for allowing this to happen. The AZ Bar claims it exists to “protect the public”. The story of Mr. Ivchenko shows that, at least in his case, the AZ bar failed in that mission in every way possible. That is a something the public can and should take extremely seriously. It is a textbook issue of public concern.

None of that is why I’m writing on a Saturday. Rather, I wanted to share a fun bit of news – on Friday, I got a call from a lawyer representing Mr. Ivchenko. You guessed it – Ivchenko saw my posts, and he’s threatening to sue me.

For what? Something called “false light”.

Now let’s be honest – I’ve only been doing this for 20+ years. During that time, I have only handled a few hundred cases involving defamation and related torts. So really, this is an issue we need the deep, DEEP expertise and wisdom of Omar Serrato. Unfortunately, in addition to his incredible legal practice, Omar also works full time as the top engineer at SpaceX. I’m told he’s super busy building the next rocket that will take Elon and Trump to Mars. What a true American hero.

Since Omar is not available, I will try to help unpack this threat from Ivchenko.

Everyone knows lying is wrong. In most cases, when you say something false about another person, you can be sued for defamation. There are lots of subtleties involved (LOTS). The bottom line is if you LIE about someone else in a way that hurts their reputation, you can be sued for defamation (I always jokingly note that if someone LIES about you in a way that HELPS your reputation, that’s different….but that rarely happens).

OK, so if you LIE, you can get SUED. Makes sense.

Does that mean if you say something 100% TRUE, you are always 100% safe? You may be surprised to learn this (looking at you, Hito 👀), but the law DOES permit liability even if every word you said is completely true. In other words, TRUTH IS NOT ALWAYS A DEFENSE.

Wait, what? Really? OH SHIT.

Yes, oh shit is right. In fact there are several different legal theories that allow you to sue people over TRUE speech. YIKES!

One claim is something called “public disclosure of private facts“. Imagine you know a person has an STD. If you share that info with others, you can (depending on the situation) face a lawsuit for public disclosure of private facts….even if you only disclosed 100% true facts. You didn’t lie. You literally only spoke the truth. And you could be sued for it.

Another type of similar claim is “False Light”. This is shorthand for the full name: “Invasion of Privacy By Publicly Placing Plaintiff In A False Light.”

If you want to get SUPER-technical, you can read the AZ jury instruction for this tort here:  https://www.azbar.org/media/owreujof/20-privacy-instructions-2023.pdf

For a second, let’s forget about the technical aspects. Let’s just break this down in plain English — false light is when you say something BAD about another person which is literally TRUE, but the way you said it is somehow seriously and materially misleading.

Here is a PERFECT example I’m guessing will make perfect sense to many of you — imagine you have an Instagram account. You post: “Jeff Jones was arrested for 12 counts of sexual conduct with a minor.”

Assume for the sake of argument this statement is 100% true. Can you be sued? Your statement was completely true, so no way could you be sued, right?

Wrong. In this example, you failed to mention something else — EVERY charge against Jeff Jones was DISMISSED, WITH PREJUDICE, and he was convicted of NOTHING. Even worse, the prosecutor on the case was later DISBARRED. Your post never mentioned any of that.

In that situation, by omitting additional facts, you may be guilty of placing Jeff Jones in a false light….even though you did not say anything false, you left out information which arguably changed the picture in an important way.

The basic concept is this:

Defamation = LYING ABOUT THE FACTS
False Light = GIVING TRUE FACTS, BUT IN A MISLEADING/INCOMPLETE WAY

This legal theory is partly why I was so critical of many YouTubers at the start of a certain case. I KNOW you guys don’t understand this, but if you want to tell a story, you CANNOT only tell half the story. You CANNOT pick and choose only the facts you like, while omitting other facts you don’t like.

I mean, you CAN do this…and everyone does. But in the wrong circumstances, it can expose you to BIG TIME liability. Either for defamation or false light.

Having said that, there is a BIG catch (many, actually). Although a false light claim can (in theory) be based on statements that are literally true, the claim still requires proof the publication somehow contained a false implication about something MAJOR:

Under this theory, a plaintiff may recover even in the absence of reputational damage, as long as the publicity is unreasonably offensive and attributes false characteristics. However, to qualify as a false light invasion of privacy, the publication must involve “a major misrepresentation of [the plaintiff’s] character, history, activities or beliefs,” not merely minor or unimportant inaccuracies.

Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989) (emphasis added)

The lawyer for Mr. Ivchenko never explained what was the “major” false implication in the statements I wrote. But I’ve dealt with Ivchenko enough to know exactly what he will say — Ivchenko (because he isn’t a First Amendment lawyer) always took the position that ANY statement showing his wife’s mugshot or mentioning her arrest was defamatory because it implied she was guilty of a crime.

But wait – didn’t she SIGN A STATEMENT ADMITTING SHE WAS GUILTY OF A CRIME? Yes, she most certainly did. I linked that before, and here’s another link:
5/15/2018 – Defendant’s Consent to Diversion

I think the point Mr. Ivchenko hopes to make is that showing his wife’s mugshot implies she was convicted of a crime, not that she was merely guilty of one. Of course, that’s why I also included the diversion document and a link to the court docket — because as the docket shows, after her arrest, Mrs. Ivchenko entered into a “diversion agreement” which allowed her to avoid a conviction. Does that REALLY make you feel more comfortable about having her babysit your kids, with an unlocked liquor cabinet nearby?

The facts are simple. Mrs. Ivchenko was arrested. She admitted she was guilty of the charge (assault on a police officer, a felony). But due to her obvious problems with alcohol, the prosecutor allowed her to go to rehab, which she apparently did. Following completion of rehab, the criminal case was dropped. So, in 100% complete fairness, she was not convicted of a felony, even though she admitted she was guilty of a felony.

Does all that make sense?

Now that I’ve given this additional explanation, do you REALLY think anything I posted before placed Mrs. Ivchenko in a false light? I NEVER said she was convicted of anything. I said she was ARRESTED for assaulting a police officer (100% true). I said she signed a statement admitting she was guilty as a part of a diversion agreement (also 100% true).

I also explained there were a LOT more details to come, but honestly, none of them are helpful to Mrs. Ivchenko. If anything, the stuff I have posted about Mr. and Mrs. Ivchenko DOES place them in a false light because I have failed show ALL of the HORRIBLE things they have done. If you watch the bodycam footage, the police mention all the OTHER times they were called to the Ivchenko residence for similar problems. I have not (yet) posted that OTHER bodycam footage, so actually, I have failed to include MORE bad stuff about Mrs. Ivchenko.

In other words, my comments have actually been unfairly POSITIVE, because there is so much more BAD stuff I could have included.

Want one example? Consider this — after she was arrested for assaulting a police officer, and after she ADMITTED she was guilty of that crime, Mrs. Ivchenko sued the City of Scottsdale. This is going to be hard to believe, but let me summarize her argument — she literally claimed she was a severe alcoholic. Based on that disability, she said the police violated the Americans with Disabilities Act by arresting her.

You literally can’t make this shit up.

Put another way – Mrs. Ivchenko argued: “because I’m an alcoholic, that’s a disability so the cops can’t arrest me!!!”

The district court tossed that argument in the trash. Insanely, Mrs. Ivchenko appealed. Guess what? She lost:

[W]e hold that the district court did not err in dismissing Ivchenko’s disability-related claims. Her wrongful arrest theory fails because, according to Ivchenko’s own pleadings, she committed at least one arrestable offence.

Her Second Amended Complaint explains that, after her husband poured her vodka down the kitchen sink, she placed a “baseless 911 call,” falsely reporting domestic violence. This is a crime under Arizona law, see Ariz. Rev. Stat. § 13-2907.01, and the fact that Ivchenko committed this act while inebriated does not make it any less so. Upon arriving at Ivchenko’s home and determining that her report of domestic abuse was “baseless,” officers therefore had probable cause to arrest Ivchenko, which defeats a claim for wrongful arrest.

Ivchenko v. City of Scottsdale, 2021 WL 4739642, *1 (9th Cir. 2021).

Anyway, this is the type of fun stuff I get to deal with – another baseless threat from Andrew Ivchenko; a vexatious litigant and lawyer who is literally a one-man crime spree, with an unblemished disciplinary history with the State Bar of Arizona.

Protecting the public – the State Bar of Arizona’s #1 job.