Court of Appeals Building, Albany, NY.
Court of Appeals Building, Albany, NY. (Rick Kopstein)

We are attorneys with Reed Smith and recently read an article titled “Attorneys Beware—Limited Immunity From Defamation Suits” (NYLJ, Dec. 21, 2016). In the article, the authors suggest that the new qualified immunity test applicable to pre-litigation statements set out in Front, Inc. v. Khalil, 24 N.Y.3d 713 (2015), may be overcome by a showing of malice. This same interpretation of Khalil was briefly discussed in the decision in Yukos Capital v. Feldman, 2016 WL 4940200 (S.D.N.Y., Sept. 14, 2016). We respectfully disagree with this interpretation of Khalil.

The Court of Appeals in Khalil did not intend the general malice standard in defamation cases to be applicable to overcome the pre-litigation privilege: “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.” Khalil, 24 NY 3d at 720. Rather than using the general malice standard, Khalil outlined 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.” Khalil, 24 N.Y.3d at 720.

Like statements made with absolute privilege, the privilege attaching to pre-litigation statements cannot be overcome by the general malice standard, but rather only if the attorney harassed or bullied the subject of his statements. The privilege is lost only where it is shown that the statements were not pertinent to a good faith anticipation of litigation. The court recognized that special, but not absolute, protection is required for pre-litigation statements to aid in settlement, zealous representation of clients, and to avoid chilling attorney communications. 

Thank you for this opportunity to provide our perspective on the holding of this important Court of Appeals decision.

David M. Schlecker and Lillian C. Worthley
New York

We are attorneys with Reed Smith and recently read an article titled “Attorneys Beware—Limited Immunity From Defamation Suits” (NYLJ, Dec. 21, 2016). In the article, the authors suggest that the new qualified immunity test applicable to pre-litigation statements set out in Front, Inc. v. Khalil , 24 N.Y.3d 713 ( 2015 ) , may be overcome by a showing of malice. This same interpretation of Khalil was briefly discussed in the decision in Yukos Capital v. Feldman, 2016 WL 4940200 (S.D.N.Y., Sept. 14, 2016). We respectfully disagree with this interpretation of Khalil.

The Court of Appeals in Khalil did not intend the general malice standard in defamation cases to be applicable to overcome the pre-litigation privilege: “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.” Khalil, 24 NY 3d at 720. Rather than using the general malice standard, Khalil outlined 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.” Khalil, 24 N.Y.3d at 720.

Like statements made with absolute privilege, the privilege attaching to pre-litigation statements cannot be overcome by the general malice standard, but rather only if the attorney harassed or bullied the subject of his statements. The privilege is lost only where it is shown that the statements were not pertinent to a good faith anticipation of litigation. The court recognized that special, but not absolute, protection is required for pre-litigation statements to aid in settlement, zealous representation of clients, and to avoid chilling attorney communications. 

Thank you for this opportunity to provide our perspective on the holding of this important Court of Appeals decision.

David M. Schlecker and Lillian C. Worthley
New York