Qualified Privilege For Attorney’s Prelitigation Statements
The New York Court of Appeals has held that a qualified litigation privilege applies to an attorney’s statements in anticipation of litigation.
The case involved letters sent by counsel to a former employee of his client who was suspected of removing confidential information prior to his departure.
The letters accused the employee of taking confidential and proprietary information, demanded its return and directed that the employee and new employer cease and desist from contacting clients.
The departed employee sued for defamation.
The court
This appeal requires this Court to answer the open question of whether statements made by attorneys prior to the commencement of litigation are privileged. We hold that such statements are protected by a qualified privilege. If the statements are pertinent to a good-faith anticipated litigation, no cause of action for defamation can be based on those statement…
The rationale supporting the application of privileged status to communication made by attorneys during the course of litigation is also relevant to pre-litigation communication. When litigation is anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation. Attorneys often send cease and desist letters to avoid litigation. Applying privilege to such preliminary communication encourages potential defendants to negotiate with potential plaintiffs in order to prevent costly and time-consuming judicial intervention. Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis for a defamation suit…
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.
The court affirmed the dismissal of the defamation action. (Mike Frisch)