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.
