You are here: / / Pre-Litigation Statements Made by an Attorney (Here In a Cease and Desist...
, ,

Pre-Litigation Statements Made by an Attorney (Here In a Cease and Desist Letter) Are Protected by Qualified, Not Absolute, Privilege—Such Statements Are Privileged If Not Motivated by Malice and If Pertinent to Anticipated Litigation

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that statements made by an attorney prior to the commencement of litigation are protected by a qualified, not absolute privilege.  A qualified privilege will not protect statements motivated by malice.  Here statements made by an attorney in a cease and desist letter were made in good faith and were pertinent to anticipated litigation, and therefore protected by qualified privilege:

… “[A]s a matter of policy, the courts confine absolute privilege to a very few situations” … . We recognize that extending privileged status to communication made prior to anticipated litigation has the potential to be abused. Thus, applying an absolute privilege to statements made during a phase prior to litigation would be problematic and unnecessary to advance the goals of encouraging communication prior to the commencement of litigation. To ensure that such communications are afforded sufficient protection the privilege should be qualified. Rather than applying the general malice standard to this pre-litigation stage, the privilege should only be applied to statements pertinent to a good-faith anticipated litigation. This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations … . Therefore, we hold that statements made prior to the commencement of an anticipated litigation are privileged, and that the privilege is lost where a defendant proves that the statements were not pertinent to a good-faith anticipated litigation … . Front Inc v Khalil, 2015 NY Slip Op 01554, CtApp 2-24-15

 

You might also like
JUDICIARY LAW 487 CREATES A PRIVATE RIGHT OF ACTION AGAINST AN ATTORNEY FOR DECEIT OR FRAUD ON THE COURT OR ANY PARTY TO A LAWSUIT; HERE THE PROOF OF DECEIT OR FRAUD WAS LACKING (CT APP).
Nonsignatory Could Not Be Compelled to Arbitrate Under Direct Benefit Estoppel Doctrine
Revised Retainer Agreement, Which Changed the Fee Arrangement from Hourly to a 40% Contingency, Was Not Unconscionable/the Continuing Representation Doctrine Will Not Extend the Statute of Limitations for an Action Seeking the Return of Gifts Made by a Client to Her Attorneys Where the Sole Basis for the “Continuing Representation” Is a Fee Dispute
Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function
SCHOOL DISTRICTS ARE NOT OBLIGATED TO TRANSPORT CHILDREN TO THEIR PRIVATE SCHOOLS WHEN THE PUBLIC SCHOOLS ARE CLOSED (CT APP).
Unclear Record Re: Whether Defense Counsel Was Apprised of the Complete Contents of a Jury-Request for Instructions Combined with the Judge’s Failure to Address One Aspect of the Request Constituted a “Mode of Proceedings” Error
UNWARNED STATEMENTS MADE WHEN THE POLICE APPROACHED DEFENDANT GETTING OUT OF HIS CAR AND HANDCUFFED HIM SHOULD HAVE BEEN SUPPRESSED; THE SUBSEQUENT CONSENT TO SEARCH, MADE AFTER MIRANDA WARNINGS, WAS NOT TAINTED BY THE UNWARNED CUSTODIAL QUESTIONING; DEFENDANT’S CONSTITUIONAL CHALLENGES TO NEW YORK’S GUN LICENSING REGIME WERE NOT PRESERVED (CT APP). ​
DEFENDANT, AT THE TIME OF THE PLEA, AGREED TO A SENTENCE OF 20 DAYS OF COMMUNITY SERVICE; AT SENTENCING, AFTER DEFENDANT HAD COMPLETED THE COMMUNITY SERVICE, THE PROSECUTOR AND DEFENSE COUNSEL ACKNOWLEDGED THAT THE BARGAINED-FOR SENTENCE WAS A ONE-YEAR CONDITIONAL DISCHARGE; ON APPEAL DEFENDANT ARGUED HE NEVER AGREED TO THE CONDITIONAL DISCHARGE AND HIS GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE MAJORITY HELD THE ISSUE WAS NOT PRESERVED FOR APPEAL (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure to Make a Finding of Necessity Re: Restraining Defendant at Trial with... Because the Landlord Engaged in Fraud, the Four-Year Rent-Overcharge Statute...