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
Inventory Search Which Included Removal of Seat Panels and Speakers Okay
PETITIONER, A CORPORATION OPERATING A BUSINESS ON THE PROPERTY, WAS NOT THE OWNER OF THE REAL PROPERTY AND WAS NOT OBLIGATED TO PAY PROPERTY TAXES, THEREFORE PETITIONER DID NOT HAVE STANDING TO CHALLENGE THE PROPERTY TAX ASSESSMENT PURSUANT TO RPTL 704 (CT APP).
SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS.
Plaintiff’s Lost Profits Deemed “General Damages,” Not “Consequential Damages,” Re: a Distribution Contract in which Plaintiff Agreed to Resell Defendant’s Product
Defendant’s Inability to Participate in the Prison Sex Offender Treatment Program Based Upon His Disciplinary Record Should Not Have Been Deemed a “Refusal” to Participate in the Program
ADMISSIBILITY OF DOCUMENT ORIGINALLY CREATED IN ELECTRONIC FORM, HERE A RECORD OF TESTING OF THE SIMULATOR SOLUTION USED IN AN ALCOHOL BREATH TEST, IS DETERMINED UNDER CPLR 4518, NOT CPLR 4539.
WHERE A DEFENDANT HAS BEEN RESENTENCED BECAUSE THE ORIGINAL SENTENCE WAS ILLEGAL, THE DATE OF THE ORIGINAL SENTENCE CONTROLS FOR DETERMINATION OF PREDICATE FELONY STATUS (CT APP).
AN INDICATION THE DEFENDANT’S VEHICLE HAD BEEN IMPOUNDED, REVEALED WHEN THE TROOPER RAN THE PLATES, DID NOT SUPPORT THE TRAFFIC STOP; THE WEAPON AND DRUGS FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; APPELLATE DIVISION REVERSED (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...