Front, Inc. v Khalil,

___ NY3d ___, 2015 NY Slip Op 01554 [2015]
Once litigation has begun, an attorney’s statements are absolutely privileged – the attorney cannot be sued for defamation. (With a caveat – see below) What about statements made during the run-up to actual litigation? Specifically, what about accusations made in a cease-and-desist letter? Are these privileged as well? And, if so, is the privilege absolute or qualified? This is, strictly speaking, not a procedural issue, yet it relates so closely to the preliminary stages of many lawsuits that it is worth discussion here.

The Court of Appeals held here that comments made by attorneys to prospective adversaries in anticipation of good-faith litigation are entitled to a qualified privilege. The privilege is lost where the statements were not made in good faith, and

“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.”

So here, where a defendant made a third-party defamation claim against the plaintiff’s attorney based on good-faith statements in a cease-and-desist letter, the statements were privileged and the third-party complaint was dismissed. Read More