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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

 

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